The U.S. Supreme Court jumps back into the culture wars Tuesday, as the justices tackle a clash between two bedrock values in American public schools: On one side is the longstanding tradition of local school boards determining class curriculum for everyone. On the other side is the notion that public schools should accommodate religious objections to some materials by allowing parents to opt their kids out of some classes.
At the center of Tuesday's case is the school system in Montgomery County, Md., the most religiously diverse county in the United States, with 160,000 students of almost all faiths. The school board approved five storybooks with LGBTQ+ characters for use in elementary school classes. The avowed purpose was to teach students tolerance and respect for LGBTQ+ students and parents. But some parents objected, contending that exposure to the approved materials conflicted with their religious beliefs.
The family at the center of the case
Grace Morrison is one of the parents suing the school board. Her daughter, who has Down syndrome, was in a special-needs general curriculum class, when the school board decided to include books that talk about LGBTQ+ children and parents. Her daughter was, by then, 10 years old, and Morrison was concerned that her child would be confused by the books.
"They are in conflict with our faith. And I also think that's too heavy for our daughter," she said in an interview with NPR. "These are topics that I'm just not ready to start on down the road with her."
While the school board initially allowed parents to opt their kids out of regular classes with some LGBTQ+ content, the board eventually found that it was both too difficult and too disruptive to accommodate the number of opt-out requests. In the Supreme Court on Tuesday, the school board's lawyer will tell the justices that it's relatively easy to have opt-outs for a single class, like health and sex education, a course that allows opt-outs. But it is a logistical nightmare to take children out of a classroom when a single story book that features same-sex parents or gay and lesbian kids could come up at any time. Among the logistical questions are where to put the opt-out kids and for how long? And how would the schools then meet the needs for alternative lesson plans?
Parents of multiple faiths, and even kids, mobilized to have their views heard by the school board, with as many as 1,000 people gathering for one school board meeting. At one of these meetings, a boy who identified himself as Nick said he liked having story books that included LGBTQ characters.
"We have rights, too," he said. "We deserve to have books in our school that teach people about LGBTQ and stuff. It's not touching you, hurting you physically … I don't know why you hate it so much."
In the Supreme Court Tuesday, parents objecting to the books make two important points. First, that the Supreme Court has long ruled parents are in charge of guiding their children's values, and second, that to force these books on their children in public school is a violation of the Constitution's guarantee to the free exercise of religion.
As Morrison, the mother of the special needs youngster, put it: "It's just very heartbreaking to me how many parents feel like they have to choose between educating their child and raising their children in their faith."
While she has left her job as an oral surgeon to home-school her daughter, she notes that many parents can't do that and can't afford private school.
Eric Baxter, a lawyer with the Becket Fund for Religious Liberty who is representing the objecting parents in the Supreme Court on Tuesday, will tell the justices that schools have for decades allowed opt-outs for religious reasons.
"Most people believe that their children should have a period of time when they don't have to deal with these kind of heavier topics," he said. "It goes to their children's very identity, how they will form families, have children. The things that most people think are some of the most important decisions you'll make in your life."
So how should school districts draw the line? Should parents be able to opt their kids out of a science class when there is a discussion of Darwin's theory of evolution? Should they be able to opt out of a history class that includes a section about the women's movement and the fight for equality in the workforce? Some religions object to both of those things.
Addressing the question of teaching evolution, Baxter replies: "So what if one kid wants to opt out of dissecting frogs during biology? A lot of states actually have laws that allow those kinds of opt-outs."
The school board's position
These decisions about the public school curriculum have traditionally been left to local school boards, observes Yale law professor Justin Driver, author of The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind. He and Stanford Law professor emeritus Eugene Volokh, who has written extensively about the First Amendment, filed a friend of the court brief, siding with the school board in this case. For the most part, they say that the courts have deferred to local school boards unless there is evidence that students are being coerced into accepting an underlying religious belief.
The two scholars maintain there is no evidence of coercion here. Rather, as Driver says, "It seems to me that … the process [is] working as it should. People have raised objections, the school district has heard those objections and modified their practice."
This is not a case of children being coerced into religious beliefs, he contends. It is a case of some parents wanting to avoid having their children even being exposed to a wide variety of ideas in class, including a book, for instance, in which a child attends his uncle's wedding to another man.
"Public school is meant to be for a broad group and some individuals are going to express misgivings about the curriculum decisions," Driver contends. "But it has not been the Court's tradition to permit those individuals to carry the day. … In a big, religiously diverse country like the United states, local public schools have not been required to afford these opt-outs because of the workability concerns for the public schools."
Indeed, because school boards do reflect the views of their constituents, there are places, like San Francisco, where some books with LBGTQ+ themes are required in the curriculum.
"It's important to appreciate who is the right entity for making curricular decisions," Driver adds. "Is it the public school, or is it federal judges?"
That said, the odds of the Supreme Court using this case to require some sort of opt-outs for religious objectors are pretty high. The current court, dominated by very conservative justices, including three Trump appointees, has increasingly focused not on the Constitution's guarantee of separation between church and state, but on the First Amendment guarantee to the free exercise of religion.
What's more, only three of the nine justices were educated in public schools — Justices Samuel Alito, Ketanji Brown Jackson and Elena Kagan. The other six justices all graduated from private Catholic schools.
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