by Kelly Himes Brolly, author of “Laws, Rules, and Rights: A Guide to Protecting Children in Public Schools,” Double Umbrella Publications, LLC (2023).
Introduction
Sometimes, important events receive very little press. Mother Teresa, a Catholic nun, died on September 6, 1997. Yet, her death was largely obscured by the death of Princess Diana who died the same day. C.S. Lewis, a world-renowned Christian writer, scholar, and theologian, died on November 22, 1963, the same day President John F. Kennedy was shot and killed. Lewis’ death received understated mention. On June 27, 2025, the Supreme Court released two opinions, one was Mahmoud v. Taylor.¹ The other case, which involved executive orders and federal court authority, received most of the press. Yet, Mahmoud v. Taylor, a U.S. Supreme Court decision that impacts all parents with children in public schools nationwide, including charter schools, went unnoticed and underreported.
Public Schools are Required to Give Parents Advanced Notice and an Opportunity to Opt-Out of all LGBTQ+-Inclusive Content in Public Schools
On June 27, 2025, the U.S. Supreme Court dealt a decisive blow to LGBTQ+-inclusive content in public schools. Mahmoud v. Taylor. The Court’s decision was even more powerful in protecting parents’ religious freedom than some predicted. Now, public schools nationwide must comply with the Supreme Court’s decision, which resulted in two significant requirements. First, public schools are required to give advanced notice to parents when books and instructional materials with LGBTQ+-inclusive themes “are to be used in any way.” Second, public schools “must allow parents to have their children excused from that instruction.” (p. 41). To do otherwise, violates parents’ rights to free exercise of religion, which is guaranteed by the First Amendment to the U.S. Constitution.
Unfortunately, public schools are left to monitor themselves. One wonders if this is happening. However, parents who are aware of the Court’s ruling may request advanced notice of the content and opt-out.
Background
The Maryland case involved several storybooks with sex- and gender-identity themes that were incorporated into the school district’s² Kindergarten through 5th grade English Language Arts curriculum. Initially, parents were allowed to obtain an “opt-out” and have their children removed from the instruction with an excused absence. But when hundreds of parents submitted opt-outs, the policy changed and the school stopped allowing opt-outs. The school also refused to give parents advanced notice of when the storybooks and teacher-led discussions would be held. Even after more than 1,000 parents signed a petition to have opt-outs reinstated, the school was unmoved.
Several families sued the school alleging violations of their rights to free exercise of religion and parental rights. The U.S. Supreme Court ruled in favor of the parents, and as a result, the Court’s decision affects all parents with children in public schools, including charter schools³, nationwide.
The Storybooks Attempt to Normalize LGBTQ+-Inclusive Content
Beginning with a close examination of the storybooks, the Court concluded that they were “unmistakably normative,” meaning that the books try to establish norms or standards for behavior, morals, ethics, or viewpoints. (p. 22). The books are “clearly designed to present certain values and beliefs as things to be celebrated and certain contrary values and beliefs as things to be rejected.” (p. 22).
Using the storybook about gay marriage as an example, the Court elaborated on these opposing values and beliefs. The Court stated, “Many Americans advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. . . . The storybooks, however, are designed to present the opposite viewpoint to young, impressionable children who are likely to accept without question any moral messages conveyed by their teachers’ instruction.” (p. 22). This viewpoint is “directly contrary to the religious principles that the parents in this case want to instill in their children.” (p. 23).
Similarly, the Court examined the storybook on transgender. The Court stated that “Many Americans, like the parents in this case, believe that biological sex reflects divine creation, that sex and gender are inseparable, and that children should be encouraged to accept their sex and to live accordingly.” (p. 24). The storybook, on the other hand, encourages the students to take the opposite viewpoint. The teacher-led discussion materials state, “When we’re born, people make a guess about our gender” and that “in any point in our lives we can choose to identify with one gender, multiple genders, or neither gender.” (pp. 24 and 27). This is followed by a question to the children, “What pronoun fits you best?” (p. 24). The Court pointed out that these normative messages undermine the moral message many American parents want to pass on to their children in violation of their constitutional rights.
The Storybooks are Coercive
The Court also considered the government’s “great authority and coercive power through public schools,” especially given the state’s compulsory attendance laws. (p. 26). In other words, for families who cannot send their children to private school or homeschool them, they must send them to public school where they are exposed to this content.
Further, the Court recognized that students often emulate teachers as role models and are susceptible to peer pressure. (p. 26). The school argued that the books were mere “exposure to objectionable ideas” or lessons in “mutual respect,” but the Court did not agree. (p. 27). Adding to the point, Justice Thomas noted that the “parents’ religious views are not welcome in the ‘fully inclusive environment’ that the school purported to foster.” (concurrence, p. 9).
The Court also rejected the idea that exposure, coercion, or indoctrination was or should be the legal standard. Instead, the Court considered “whether the educational requirement or curriculum at issue would substantially interfere with the religious development of the child or pose a very real threat of undermining the religious beliefs and practices which the parents wish to instill in the child.” (p. 28). In this case, the parents proved that they met this standard.
Public Schools Cannot Force Parents to Give Up Their Constitutional Rights
Applying a common legal doctrine, the Court reiterated that parents who send their children to public schools cannot be forced to give up their right to free exercise of religion. More specifically, “Public education is a public benefit, and the government cannot condition its availability on parents’ willingness to accept a burden on their religious exercise.”⁴ (pp. 32-33).
Public Schools Must Allow Opt-Outs Even if they are Cumbersome
The Court had no sympathy for the school’s claims that opt-outs were administratively difficult or cumbersome. The Court highlighted the school’s robust pull-out and opt-out programs for special education services, emergent language learners, and sex education. These were evidence that it could accommodate opt-outs. If the content was embedded or woven into the curriculum, the school’s problem was of its own making.
The Court determined: “If the [school] can structure the [sex education] curriculum to more easily accommodate opt-outs, it could structure instruction concerning the LGBTQ+-inclusive storybooks similarly. The [school] cannot escape its obligation to honor parents’ free exercise rights by deliberately designing its curriculum to make parental opt-outs more cumbersome. . . . the [school’s] concerns are self-inflicted.” (p. 39).
In practical terms, this means that public schools cannot “weave” or embed LGBTQ+-inclusive content throughout the curriculum and instruction without providing advanced notice to parents and an opportunity to opt-out. Concurrence (p. 12). To the extent that removing this embedded content is difficult, it is a problem of the school’s own design. Parents’ constitutional rights prevail.
The Potential for Stigma and Isolation
According to school officials, they stopped offering opt-outs because they were concerned that the students who participated in the storybook instruction would be stigmatized or isolated. (p. 39). Yet, the Court found no evidence that the opt-outs had caused stigma or isolation. Even if there had been, the Court recognized, “the [school] cannot purport to rescue one group of students from stigma and isolation by stigmatizing and isolating another. A classroom environment that is welcoming to all students is something to be commended, but such an environment cannot be achieved through hostility toward the religious beliefs of students and their parents.” (pp. 39-40).
History Repeats Itself – Exactly 100 Years Later
In Justice Thomas’ concurring opinion, he explained that America has “been there and done that” with ideological conformity-driven rationales in public education.
In the late 1800’s, America was self-perceived as a Protestant nation. By the turn of the century, European Catholics had emigrated to the United States, and with them, their Catholic schools. Many people, particularly the prestigious and popular, viewed Catholicism as a threat to the Protestant-American way of life. Mandatory public schools were the perceived method to “Protestantize the immigrant children.” (p. 7). John Dewey, a prominent education reformer, “insisted that parents should not be permitted to inculcate their children with outdated and useless religious beliefs.” (p. 8 fn. 5). In keeping with this cutting-edge view, Oregon passed a law requiring all children to attend public schools from first through eighth grade, which effectively closed the Catholic schools.
The Oregon law was challenged in the case Pierce v. Society of Sisters⁵. By 1925, the case was before the Supreme Court, which struck down the law as unconstitutional and antithetical to our “fundamental theory of liberty.” (p. 8). Justice Thomas’ concurrence carefully unfolds this history and the parallel themes in the LGBTQ+-inclusive agenda. Just as Oregon claimed that the law promoted “equality” and “law-abiding citizens,” the school claimed the storybooks created “equity” and “civil” students. (p. 10). The Oregon law could not be reconciled with “the rights of parents to direct the religious upbringing of their children, even if it aligns with the smart-set views of the day.” (p. 10). In both cases, exactly 100 years apart, an ideological conformity-driven rationale being promoted in public schools was struck down as unconstitutional. Parents’ constitutional rights prevailed. Catholic schools could continue to teach students.
History repeats itself, and it certainly makes one wonder how today’s education reformers, and the legislators that enable them, will be perceived 100 years from now.
Justice Thomas’ Admonition to the Lower Courts
Additionally, Justice Thomas traced the history of sex education in public schools, and the very recent and unprecedented introduction of LGBTQ+-inclusive content. Justice Thomas pointed out that the school could have included the storybooks in its sex education curriculum, which allowed opt-outs. Instead, the school chose to incorporate the storybooks into the English Language Arts curriculum, where opt-outs were more difficult. He also pointed out that public schools cannot insulate themselves from liability under the First Amendment by “weaving religiously offensive material throughout its curriculum and thereby significantly increasing the difficulty and complexity of remedying parents’ constitutional injuries.” (p. 13). Otherwise, public schools could saturate the curriculum with materials that undermine “family decisions in the area of religious training.” (p. 13). Free exercise of religion was intended to “flourish.” (p. 13).
In closing, Justice Thomas instructed the lower courts to “carefully police such ingenious defiance of the Constitution.” (p. 13).
The Implications of the Court’s Decision
The Court’s holding is powerful, and the implications are significant and timely as students return to public schools.
First, the Court’s decision requires public schools to review curriculum and instructional materials for LGBTQ+-inclusive content that “is used in any way,” and may be embedded or woven into public school instruction. The public schools may confine the content to specific units or include it in the sex education class. Yet, they must give parents “advanced notice” and an opportunity to opt-out. Logically, the public schools’ review should include the curriculum, supplemental materials, as well as instruction and content from third-party vendors, online resources, book fairs, and even teacher-student discussions, which may require continuing education. Unfortunately, they are left to monitor themselves. However, parents can call and email their public schools to confirm that they are fulfilling their constitutionally-required duties. Also, parents, or anyone with an interest in this topic, can also submit an open records request for this information under the state’s open records law, which is sometimes referred to as a freedom of information or sunshine act.
Second, we know that this decision applies to Kindergarten through 5th grade, and may apply through high school. On the one hand, the Court stated that the age of the student was highly relevant to the effects of the instruction. (p. 26, fn. 8). On the other hand, the Court relied heavily on Wisconsin v. Yoder, a prior U.S. Supreme Court decision involving students in 9th through 10th grade⁵. The Court also restated the importance of “protecting freedom of conscience from subtle pressure in the elementary and secondary public schools.” (p. 26). The term “secondary schools” generally includes 6th through 12th grade students. Unless and until another case involving the higher grades is brought, we don’t have a firm answer. Nonetheless, parents can call and email their public schools to confirm that they have received advanced notice of all LGBTQ+-inclusive content that “is to be used in any way,” and in advance, submit an opt-out.
Download Public School Opt-Out Form
Third, parent opt-outs are about to become even more common-place in public schools. Opt-out forms are usually available on school district websites, on parental rights websites, and through an online search. A free printable opt-out is available at the Double Umbrella Publications website under “Resources.”
Fourth, and hopefully a long-term effect, is that public schools will eventually get tired of the opt-outs and return to teaching the basics!
For those who want a deeper dive into the Court’s opinion, a copy of the Mahmoud v. Taylor decision is attached under “Resources.” The quoted portions of this article are highlighted in yellow so that they can be read in context.
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¹ Mahmoud et al., v. Taylor, et al., 606 U.S. ___ (2025). To date, the official case citation is incomplete, and is written with the blank space for the “to be determined” page number. All citations in this article are to the temporary page numbers in the Court’s opinion. Please note that the Court’s Opinion has four parts: the slip opinion (syllabus), the majority opinion, the concurring opinion, and the dissenting opinion. Each part begins with a new page 1. Be sure you are in the correct section. For readability, most internal quotations and citations have been omitted. The term “Id.,” which is short for the Latin idem, meaning “the same,” is not used in this article. Instead, the page reference above is repeated, as needed.
² In Maryland, as in other states, the local school district is governed by a school board, which is a policy-making body. For readability, I refer to the school district and the school board in the case as the “school.”
³ Charter schools are also public schools and are impacted by the Court’s decision. However, the case does not directly impact private schools because the First Amendment protects against government infringement of constitutional rights. Private schools are not government-run schools. See Brolly, Kelly, “Laws, Rules, and Rights: A Guide to Protecting Children in Public Schools,” Double Umbrella Publications, LLC (2023).
⁴ This doctrine, known as the “unconstitutional conditions doctrine,” has been applied to other public benefits, not just public schools. It has also been applied to other constitutional rights, not just the right to free exercise of religion. So, it is a good principle to know, especially when government places more restrictions on constitutional rights as a condition to receiving a public benefit.
⁵ Pierce v. Society of Sisters, 268 U.S. 510 (1925).
⁶ In Wisconsin v. Yoder, 406 U.S 205 (1972), Wisconsin’s mandatory attendance law required students to attend school through age 16, which is generally 10th grade. The Amish wanted to send their children to attend school through age 14, which is generally 8th grade. Thus, the issue before the Court involved the state’s 9th and 10th grade mandatory attendance law.
Disclaimer: This article is for educational purposes only. No information contained in this article should be construed as legal advice, does not create an attorney-client relationship, nor is it intended to be a substitute for legal counsel on any subject matter. Readers are encouraged to contact an attorney in their jurisdiction with any questions.
Kelly Himes Brolly is an attorney, author, consultant, and the Managing Member of Double Umbrella Publications, LLC, d/b/a Double Umbrella Consulting. For more information on constitutional rights in layman’s terms, see Part II, Federal and State Constitutional Rights, in Kelly’s book, “Laws, Rules, and Rights: A Guide to Protecting Children in Public Schools,” Double Umbrella Publications, LLC (2023). To order Kelly’s book on Amazon, go here. To hear Kelly’s podcast on ThinQ Media titled “The Informed Parent,” go here. To learn more about parental rights and public schools in all 50 states, go here or to www.doubleumbrellapublications.com.
