The Volokh Conspiracy
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Brief from Prof. Justin Driver (Yale) and Me in School Curriculum / Religious Opt-Out Case
"This Court should not announce an opt-out right for religious objectors under the Free Exercise Clause that its precedents would foreclose for students objecting to public-school curricula under the Free Speech Clause."
We argue, in an amicus brief filed in Mahmoud v. Knight (now pending before the Supreme Court), that the Free Exercise Clause doesn't secure a presumptive right to opt out of K-12 public school curriculum elements to which the parents or children have a religious objection. Many thanks to I. Rodgin Cohen, Amanda Flug Davidoff, Daniel J. Richardson, and Harrison J. Tanzola (Sullivan & Cromwell LLP), who wrote the brief on our behalf. Here's the Summary of Argument:
Petitioners ask this Court to hold that parents have a constitutional right to interfere with the routine curricular decisions of public schools. Whether this Court answers that question by applying its existing free-exercise precedents or—as members of this Court have recently suggested—by considering analogies to free-speech doctrine, see Fulton v. City of Phila., 593 U.S. 522, 543 (2021) (Barrett, J., concurring); id. at 565 n.28 (Alito, J., concurring in the judgment), the answer is the same: The First Amendment does not shield public-school students from the mere exposure to ideas that conflict with their personal views, whether secular or religious.
Every day, thousands of public schools throughout the United States make countless decisions about the best way to educate their students. Those decisions reflect the input of educators, parents, and local communities. They thus incorporate competing views about both the materials that should be included in public-school curricula and the role of public education in civil society. In a country as diverse as the United States, those decisions also often expose students to ideas that may be in tension with their deeply held beliefs.
This Court has developed an extensive body of law that balances the needs of the public-school system against the free-exercise rights of students and parents. These decisions prevent public schools from espousing or indoctrinating religious views, require schools to accommodate students' private religious practices, and let parents educate their children outside the public-school system altogether. At the same time, they also recognize the importance of local control over education and the harms that can arise from judicial interference in curricular decision-making. Taken together, this Court's precedents have established a stable framework—one that has allowed religious exercise to flourish on and off school grounds, but without inhibiting the ability of local communities to make decisions about public education and to expose public-school students to a wide variety of ideas.
Petitioners' suit would upset that balance. In this case, the Montgomery County Public School Board approved a set of books for its English curriculum that include LGBT characters. The Board added these books to "assist students with mastering reading concepts" and to teach respect for other students. Petitioners challenged MCPS's decision, arguing that the Free Exercise Clause requires the county either to remove the books or to accommodate opt-outs for any student who has a religious objection to reading them. In advancing that claim, Petitioners did not contend that the books espoused any religious or anti-religious view, nor did they show that the Board included the books to coerce students into adopting any particular viewpoint. Instead, they argued that merely introducing students to books in tension with their religious faith violated the Free Exercise Clause.
Petitioners' sweeping opt-out theory is inconsistent with free-exercise law and would undermine the educational system. For decades, this Court has recognized that students do not surrender their constitutional rights at the schoolhouse gate. But it has also explained that the protections of the First Amendment must be tailored to the unique demands of the school environment, and has cautioned against constitutional theories that would displace the "vital national tradition" of local control over education.
Applying those decisions, lower courts have consistently (and correctly) held that the Free Exercise Clause does not allow parents to override routine public-school curricular decisions. As these courts have recognized, "[p]ublic schools often walk a tightrope between the many competing constitutional demands made by parents, students, teachers, and the schools' other constituents." When weighing those demands, our constitutional system vests authority in "the normal political processes for change," rather than the federal courts.
That result is not unique to free exercise. In recent years, members of this Court have suggested that the Free Exercise Clause should be understood in light of other First Amendment freedoms. Justice Barrett's concurrence in Fulton suggested that the meaning of free exercise may be informed by how "this Court[]" has treated "other First Amendment rights-like speech and assembly." And Justice Alito's Fulton opinion argued that "the phrase 'no law' applies to the freedom of speech and the freedom of the press, as well as the right to the free exercise of religion, and there is no reason to believe that its meaning with respect to all these rights is not the same."
Examining how "other First Amendment rights" apply to school curricula confirms that the decision below was correct. This Court has long held that schools can expose students to materials on various subjects without infringing the free-speech rights of students and parents. And federal courts have long rejected claims (like Petitioners') that would either require student-specific opt-outs or empower individual parents to dictate educational decisions for the entire school. This Court should not announce an opt-out right for religious objectors under the Free Exercise Clause that its precedents would foreclose for students objecting to public-school curricula under the Free Speech Clause.
The practical implications of Petitioners' opt-out theory provide another reason for caution. Were this Court to adopt Petitioners' view, public schools would be forced to either (i) offer student-specific instruction every time a parent identifies a potential conflict between the public-school curriculum and their religious faith, or (ii) develop a curriculum so anodyne that it aims to avoid even the slightest risk of exposing students to ideas that may conflict with any conceivable religious belief-a task that would almost certainly prove impossible in practice.
Such a result would be both unworkable and undemocratic. Parents would have the right to flyspeck curricula in a vast range of academic subjects, as they have already tried to do. See, e.g., Fleischfresser v. Directors of Sch. Dist. 200 (7th Cir. 1994) (discussing a free-exercise challenge to books that reference "wizards, sorcerers, [and] giants"). And schools would be discouraged from providing the education they believe to be most valuable, in favor of making choices that-they hope, but can never know-would provoke relatively few parents to opt out.
The Court of Appeals' decision correctly applied free-exercise law, aligned with other First Amendment doctrines, and honored the importance of local control over education. This Court should affirm….
If you're interested, you can read the whole thing here and many more briefs on both sides here.
