Parental Rights in Education

by Brent E. Zepke, Esq.

On June 27, 2025, the U.S. Supreme Court held that parents still have some rights in choosing the education they believe their children should receive.

It is a sad commentary on the times that it took the United States Supreme Court – and then only by a vote of 6-3 – to certify that parents in the state of Maryland still have that right.

Maryland

The state of Maryland requires that resident children ages 5 to 18 “attend a public school regularly during the entire school year” (Md. Educ. Code Ann. 7-301). If certain requirements are met, children may attend a private school or be educated at home.

During the 2022-2023 school year, the Montgomery County, Maryland, Board of Education (Board), introduced five “LGBTQ+ inclusive” storybooks approved for students in kindergarten through fifth grade, which have story lines focused on sexuality and gender.

Taught in kindergarten was “Uncle Bob’s Wedding,” a story about a young girl not understanding how her uncle Bobby is getting married to his boyfriend Jamie.

Taught in first grade was “Prince and Knight,” a story of romance between two men.

Taught in second grade was “Born Ready,” a story of a child born as a girl who says “Inside, I’m a boy.”

The Board suggested that “teachers incorporate the new texts into the curriculum in the same way that other books are used,” and provided the teachers with guidance documents that suggested particular responses to inquiries by parents.

Interesting how the proponents of these books switch back and forth between labeling them “storybooks” and “texts.”

When parents complained, the Board compromised by notifying parents when these “storybooks” (notice that these “textbooks were described to the parents as “storybooks”) would be taught and that their children could be excused from the instruction; i.e., the Board created an “opt out” policy.

In less than a year the Board broke its word by rescinding the parental opt out policy. The Board said it “could not accommodate the growing number of opt out requests without causing significant disruptions to the classroom environment.” Guess the Board did not consider that the “growing number of opt outs” indicated that their program should be canceled.

The Board ignored the complaints by frustrated parents that exposing 5-7-year-olds to these topics violated their religious beliefs.

Some parents filed the lawsuit Mahmoud, et al, v Taylor, et al, in the Federal District Court of Maryland arguing that that this violated the religious freedom that they wished to pass on to their children.

Judge John J. McCarthy, a Biden nominee, denied their request for injunctive relief.

A divided Fourth Circuit affirmed.

The parents appealed to the U.S. Supreme Court.

Amicus briefs opposing parental rights and supporting the school district were filed by California Attorney General Rob Bonta arguing that this curriculum decision falls within the discretion of state and local governments and does not infringe on religious freedom.

Others filing similar briefs opposing parental rights included the California School Board Association (CSBA), The National Education Association (NEA), the Education Law Center, and of course the American Civil Liberties Union (ACLU).

Supreme Court

Justice Samuel Alito, nominated by George W. Bush, joined by four other justices held that Montgomery County’s policy of requiring elementary students to participate in instructions featuring these books without allowing religious exemptions violated the First Amendment’s Freedom Exercise Clause.

Justice Alito provided some explicit examples from several books before granting the injunctive relief the parents requested.

The Court held:

1. The Board’s introducing “LGBTQ+ inclusive” storybooks, combined with withholding notice and opt outs, unconstitutionally burdens their religious exercise.

2. The parents are likely to succeed on their claims.

3. The Court does not accept the Board’s characterizations of the “LGBTQ+ inclusive” instruction as mere “exposure to objectionable ideas” or as lessons in “mutual respect.” The storybooks mistakenly convey a particular viewpoint about same-sex marriage and gender.”

4. “It is no answer that parents remain free to place their children in private schools or to educate them at home. Public education is a public benefit, and the government cannot “condition” its “availability” on parents’ willingness to accept a burden on their religious exercise.”

Justice Clarence Thomas, nominated by George H.W. Bush, concurred.

Dissent

Justice Sonia Sotomayor, an Obama nominee, wrote “Casting aside longstanding precedent, the Court invents a Constitutional right to avoid exposure to ‘subtle’ themes ‘contrary to the religious principles’ that parents wish to instill in their children.”

Is this Justice really accusing the other Justices of “inventing” a constitutional right for religious freedom? Has this justice read the contents that she describes as “subtle?” Is this justice, who has no children, really inserting her opinion of what parents wish?

Justice Sotomayor continued “The Board found that the books taught in English classes ‘did not include LGBTQ characters,’” so the Board worked with a committee of specialists to incorporate these concepts into existing curriculum.”

Justice Sotomayor was joined by Justice Elena Kagan, an Obama nominee who has no children, and Justice Ketanji Jackson, a Biden nominee that could not define a woman during her confirmation hearing, who has two daughters who attended the private Georgetown Day School (average tuition of $50,000/year) and one also attends The Auburn School (tuition $44,000/year).

Conclusion

The Supreme Court ordered the District Court to grant the injunction and apply their ruling to the case.

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