Mahmoud is a case in which the Board of Education of the Montgomery County Public Schools sought to indoctrinate young elementary school children (pre-K-5th grade, children as young as 3 or 4 years old) with LGBT-themed storybooks designed to “disrupt” the thinking of these young children “about sexuality and gender.” The Board wanted to disrupt the children’s thinking about “heternormativity” and “cisnormativity.”
What do you think about these goals for public education?
One of the storybooks included a discussion guide that asserts “When we are born, our gender is often decided for us based on our sex…But at any point in our lives we can choose to identify with one gender, multiple genders, or neither gender.”
Another book features a Prince who, after rejecting many worthy ladies as a possible bride, decides to marry a knight and “The whole kingdom…applauds on the two men’s wedding day.”
Yet another reading book for elementary students, with the amazing title, Born Ready: The True Story of a Boy Named Penelope is the story of a girl who doesn’t “feel” like a girl. She even tells her mother that she wants to be “like Papa” and asks her mom to “help me to be a boy.”
Teachers in the school district were instructed by a “guidance document” how to respond to classroom discussion about these controversial issues.
For example, if a student were to say that two men cannot get married, the guidance document suggested that teachers should respond by saying “Two men who love each other can decide they want to get married.” What is even worse, if a child should claim “that a character can’t be a boy if he was born a girl,” teachers were encouraged to respond “That comment is hurtful.”
The storybook program was supposedly designed to teach students to read, but these LGBT storybooks were being used by the school to “disrupt” students’ traditional moral and religious beliefs about marriage and gender.
Is this program appropriate for pre-K to 6th grade students? Is it a reasonable one-size-fits-all reading curriculum for tender age children?
At oral argument, Justice Jackson argued that there is no burden on religious freedom because, if parents don’t like the government-school curriculum, they can send their children to a private religious school.
What do you think of that argument?
Was Jackson correct when she argued that there is no burden because you can simply send your children to private schools? Is $15,000 for each child over the course of each year for 13 years not a burden on religious liberty? Free public education is the single largest benefit most families receive from state and local government!
Justice Alito explicitly rejected Jackson’s argument. He said: “And a government cannot condition the benefit of free public education on parents’ acceptance of such instruction.” p.1 of edited opinion.
Here is a longer excerpt edited from the linked opinion:
Finally, we reject the alternatives offered to parents by those who would defend the judgment below. The first of those proposed alternatives is the suggestion that any parents who are unhappy about the instruction in question can simply “place their children in private school or . . . educate them at home.” Brief for Religious and Civil-Rights Organizations as Amici Curiae 14; accord, Brief for National Education Association et al. as Amici Curiae 15; Brief for American Civil Liberties Union et al. as Amici Curiae 10; Tr. of Oral Arg. 61–62. The availability of this option is no answer to the parents’ First Amendment objections. As we have previously held, when the government chooses to provide public benefits, it may not “condition the availability of [those] benefits upon a recipient’s willingness to surrender his religiously impelled status.”
Finally, here is the doctrine declared by Mahmoud:
Justice Alito decided that the burden on the right of parents to direct the religious upbringing of their children was so severe in Mahmoud as to trigger strict scrutiny under the Free Exercise Clause “regardless of whether the law is neutral and generally applicable.” In other words, the precedent the Court applied was Yoder (and Pierce v Society of Sisters), not Employment Division v Smith. This is huge.
Here is how Justice Alito explained this new doctrine:
“[T]he burden in this case is of the exact same character as the burden in Yoder. The Board’s policies, like the compulsory-attendance requirement in Yoder, ‘substantially interferes with the religious development of the parents’ children. And those policies pose ‘a very real threat of undermining’ the religious beliefs and practices that the parents wish to instill in their children.’”
Justice Sotomayor, joined by Justice Kagan and Justice Jackson, dissented. She argued that the Majority’s protection of parental rights “offers no limiting principle.”
“Given the great diversity of religious beliefs in this country,” she argued, “countless interactions that occur every day in public schools might expose children to messages that conflict with a parent’s religious beliefs. If that is sufficient to trigger strict scrutiny, then little is not.” She went on to state that she believes that the decision in Mahmoud “threatens the very essence of public education.”
Is this a reason not to allow opt outs? Or does it demonstrate how great the need for opt outs (or school choice) really is?
Is it possible for public schools to adopt a one-size-fits-all curriculum that truly fits all families in a Nation as divided as ours is?
One commentator asserts that the most significant right recognized in Mahmoud is "the right to receive advance notice of classroom learning materials and activities." He goes on to say that "This means Mahmoud just might break the political logjam that has been holding up a critically important reform--the creation of a thorough and efficient web-based approach to letting parents know exactly what their children are learning in school." I think the point here is that sunlight is the best disinfectant. Thoughts?
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