First, your periodic reminder both that I'm not a lawyer and that nothing I post here is from anyone other than me.
Among the cases the Supreme Court handed down on Friday, closing this year's session, is Mahmoud et al. v. Taylor et al. The case was decided 6-3 on ideological lines.
This has largely been covered as "religious parents1 can opt-out of LGBTQ lessons" decision in the press, 'though I should note that The Hechinger Report did better at what this more realistically means.
I have read through the decision, which was written by Justice Alito; the concurrence, written by Justice Thomas; and the dissent, written by Justice Sotomayor. Sotomayor was joined in the dissent by Justices Kagan and Jackson. What follows are my notes and thoughts on the decision.
Fair warning: this is bad.
My main takeaway from the decision and the concurrence of the majority is that, to those justices, LGBTQ+ is not a group of people: it is an issue or a topic. There is no acknowledgement within the decision that children who themselves are LGBTQ+ or have family members or friends should simply be represented within the curriculum, just as anyone else is or should be. This undergirds this dehumanizing decision.
Alito's decision for the majority
Justice Alito opens in this tone, referencing "a variety of 'LGBTQ+-inclusive' storybooks" in his opening sentence. The scare quotes are his, and immediately set a very reasonable goal of school districts--to ensure their students are represented within the curriculum--as if they are some radical departure from a set normative curriculum. His second sentence goes further:
These books—and associated educational instructions provided to teachers—are designed to “disrupt” children’s thinking about sexuality and gender.
That, though, is Alito's conclusion, not one that comes from the district, which very clearly lays out (as cited in Sotomayor's dissent) that having books that include the experiences of all children they serve is a value in the books used in the classroom. That children would have families that look like theirs, whatever it is their families look like, included in storybooks is not a radical measure; the disruption is of the idea that there is only way to be a family.
I'll note here, though it pains me to feel this is necessary, that it is the setting apart of this as an "LGBTQ+ issue" that is outside the norm. Children have families with relatives in other countries, as does Justice Alito; children have parents who are immigrants, as does Justice Alito; children have parents who are divorced; children are raised by their grandparents; children live in families that struggle with housing; children have families with lots of siblings and with none at all. Schools have, for decades, worked to incorporate the lived experience of children in to the books that are read in schools. It is not, of course, the only value, but it is among them.
None of this is recognized by the majority, who instead find "a government cannot condition the benefit of free public education on parents' acceptance of such instruction." Alito uses the scare quotes around "LGBTQ+-inclusive" throughout the decision.
I should also note that throughout there is a snark to the discussion of the case that, while not out of keeping with some decisions, is a tell. On page 3, for example, Alito says the Montgomery County School Board "profess a commitment" to making reasonable accommodations; that's quite a verb. He refers to "the Board's abject refusal to heed widespread and impassioned pleas for accommodation" by the Board.
Those pleas, Justice Sotomayor relates in the dissent, never included the parents following district policy in requesting review of the material. There was public comment, demonstrations, news coverage, and eventually a lawsuit, but the process by which the Board itself said families could request materials be reviewed was never used. If they wished for accommodation, they had a process by which they could request it. They didn't use it.
This is never mentioned in the majority decision.
Among the passages in the decision that quote the guidance document given to teachers is the following (this from page 7):
For example, if a student asserts that two men cannot get married, the guidance document encouraged teachers to respond by saying: “When people are adults they can get married. Two men who love each other can decide they want to get married.”
...which is a true statement. It is difficult to escape that both Alito and Thomas are in part still arguing Obergefell, in which they both dissented and which celebrated its tenth anniversary this week. To act as if it is unreasonable to have a teacher respond to a child with a factual statement is itself odd.
The majority decision works very hard to make it seem as if first, the district is telling on itself by not being able to accommodate the number of opt-out requests, and second, that the Maryland state requirement that opt-outs be accommodated for human sexuality unit means opt-outs can easily be accommodated overall.
The first, of course, is to argue that if that many families didn't want it, it shouldn't be taught. I find, as I hope all educators would, this argument breathtaking in its ignorance. There is nowhere suggested that these families were in a majority, and regardless, we set neither standards or curriculum by public vote, because decisions are made by those with whom we have trusted to make such decisions through electoral and appointed processes.
The second is managed well by Sotomayor in her dissent, but the analogy of a discrete unit of study to storybooks representing the varied experiences of families is a weak one, and the weakness is on the side of those who see those included as an issue, not a group of people.
The majority shares their decision (page 18) around the Wisconsin v. Yoder case, regarding the rights of Amish parents2 to withdraw their children from Wisconsin public schools after eighth grade which was against the state compulsory attendance law; the 6-1 decision in 1972 found for the parents. Alito goes so far (page 19) as to invoke West Virginia Board of Education v. Barnette, which most of us know as the "you can't require students to say the Pledge of Allegiance" case, as if a child listening to a story about a family like others in his classroom somehow amounts to the same as requiring a child to vow their allegiance to the flag of the country, or, as he quotes:
to “condition access to public education on making a prescribed sign and profession and at the same time to coerce attendance by punishing both parent and child.”
...as if that is in any way analogous. Alito returns to Yoder to cite the concerns of the Amish parents were an "impermissible exposure of their children to a 'world' influence in conflict with their beliefs." Alito argues this very "exposure" is what is contrary to the way in which the parents suing wish to bring up their children, and thus they have the right to withdraw their children from that exposure, while also sending them to public schools.
It is Alito's discussion of the books that had me, as both a parent and a former English teacher, reflecting again on why it is that we don't have curricula reviewed or approved by Supreme Court justices. On page 22, Alito states:
Like many books targeted at young children, the books are unmistakably normative. They 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.
Are there such books? Certainly. But that Alito says there are "many" designed to do this may well tell us more of the storybooks in the Alito family library than it does of storybooks at large.
In his discussion of the books before the court, Alito continues what really is his objection to Obergefell: a family wedding of an uncle to his husband is "accepted as a cause for celebration." Weddings, after all, generally are. Alito classifies as "coy" the reason for the main question on why Uncle Bobby is getting married, which largely reveals that Alito hasn't himself read the many, many books at exist that answer this very question for young children who have relatives getting married. He states on page 23:
The book therefore presents a specific, if subtle, message about marriage. It asserts that two people can get married, regardless of whether they are of the same or the opposite sex, so long as they “‘love each other.’” Ibid. That view is now accepted by a great many Americans, but it is directly contrary to the religious principles that the parents in this case wish to instill in their children.
(emphasis mine)
It is not only "accepted by a great many Americans," but this civil right is literally the law of the land.
Sotomayor, in her dissent, notes in a footnote on page 20:
The majority strains to cast the book as a story about a child who is apprehensive that her uncle is marrying a man. See ante, at 6, 23. The book is “coy,” the majority claims, about the reason the protagonist, Chloe, asks her mother, “ ‘“Why is Uncle Bobby getting married?” ’” Ante, at 23. With respect, the reason is plainly stated in the book and has nothing to do with the gender of anyone involved: “Bobby was Chloe’s favourite uncle,” the book explains, and Chloe “‘do[esn’t] think [Uncle Bobby] should get married’ ” because she “ ‘wants [them] to keep having fun together like always.’ ” App. to Pet. for Cert. 282a, 292a. Perhaps conscious of its creative reading, the majority admits the message it identifies is “subtle.” Ante, at 23. The right word, instead, might be “imagined.”
(emphasis mine)
Alito continues his snarking tone, as if children book authors are all about the subtext, in his discussion on page 24 of Born Ready:
Not only does the story convey the message that Penelope is a boy simply because that is what she chooses to be, but it slyly conveys a positive message about transgender medical procedures.
The storybook, you may not be surprised to learn, does not discuss "medical procedures," but Alito cannot, seemingly, conceive of a reality in which a trans child could be a person, rather than an issue. Alito writes, "the moral implication of the story is that it is seriously harmful to deny a gender transition," which is a thing we have actual data on, the sort of thing one would hope a Supreme Court justice would avail themselves of.
We know the difference having the experiences of various kinds of people represented in the curriculum makes to children. Alito, meanwhile, claims (page 27), "Only by air-brushing the record can the dissent claim that the books and instruction are just about exposure and kindness."
In working his way through the dissent, Alito writes:
If questions of public school curriculum were purely a matter of internal affairs, one could imagine that other First Amendment protections—such as the right to free speech or the right to be free from established religion—would also be inapplicable in the public school context. But our precedents plainly provide otherwise. See Tinker, 393 U. S., at 506; Weisman, 505 U. S., at 587.
What this ignores--and I don't want to go too far here, because this isn't my area!--is that the Supreme Court has found over and again that there is a government interest in the functioning of schools, and that there are limitations that are constitutionally permissible within schools in support of that.
Within the same paragraph, Alito quotes the Yoder decision "that the Amish had made a 'convincing showing, one that probably few other religious groups or sects could make'" while also saying "it cannot be breezily dismissed as a special exception granted to one particular religious minority."
Alito asserts (page 34):
Although the dissent does not follow suit in proposing that the objecting parents send their children to private school, it offers two other alternatives that are no better. First, it suggests that the parents in this case have no legitimate cause for concern because enforcement of the Board’s policy would not prevent them from “teach[ing] their religious beliefs and practices to their children at home.” Post, at 15, n. 6 (opinion of SOTOMAYOR, J.). This suggestion complements the dissent’s narrow view of the right of parents to raise their children in accordance with their faith. According to the dissent, parents who send their children to public school must endure any instruction that falls short of direct compulsion or coercion and must try to counteract that teaching at home.
This, then, is where the headlines fall short: "endure any instruction" that disagrees with the religious teachings held by the family is what Alito holds as the harm. Remember the "instruction" here was the reading of storybooks that had characters who are gay or trans; thus reading a book that includes a character or a circumstance with which the family's religious belief disagrees is seen here as the burden that the majority is weighing against. Please consider the wide array of beliefs within religious traditions and the number of books that have characters who themselves or whose actions work against those beliefs. War? Hate? Adultery? Believing in a religion other than that one? Divorce? Working on a holy day? I would never presume that I could make an entire list. Also, what of the contradictory beliefs held within a classroom?
Please consider the notification and opt-out system that a district or classroom is to create in order for this to be facilitated. That is what the majority is creating.
This is what Alito dismisses as being a burden, citing (again) the human sexuality unit (page 38) as well (in a breathtaking misuse of this requirement):
the Board goes to great lengths to provide independent, parallel programming for many other students, such as those who qualify as emergent multilingual learners (EMLs) or who qualify for an individualized educational program.
...going so far as to cite how many in a footnote. Those students, of course, are educated under the same educational standards as those not receiving such instruction.
Alito truly tips his hand on his perspective (page 39), as I noted in the beginning, on how the district should address the complication with which he has now presented them:
If the Board can structure the “Family Life and Human Sexuality” curriculum to more easily accommodate opt outs, it could structure instruction concerning the “LGBTQ+-inclusive” storybooks similarly. The Board cannot escape its obligation to honor parents’ free exercise rights by deliberately designing its curriculum to make parental opt outs more cumbersome.
Ah, because the Board is operating under bad faith in not having an "LGBTQ+" section of the curriculum, as opposed to recognizing that all families should be represented throughout the curriculum. That he cannot recognize all families as being part of the full curriculum is clear:
... the Board 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.
This purported "hostility," remember, is simply reading a storybook that shows the families of some of the students in the classroom.
Thomas' concurrence
The Court explained that one key reason why Wisconsin’s interests could not justify its law as applied to the Amish was that “compulsory education beyond the eighth grade [was] a relatively recent development” that emerged “[l]ess than 60 years ago,” yet the Amish had a track record of “successful social functioning . . . approaching almost three centuries.” Id., at 226–227. In a similar vein, the Court observed that the Amish were not “a group claiming to have recently discovered some ‘progressive’ or more enlightened process for rearing children,” but instead had a centuries-long history “as an identifiable religious sect and a long history as a successful and self-sufficient segment of American society.” Id., at 235. Thus, for the Amish, education past the eighth grade was demonstrably inessential to “meeting the duties of citizenship.” Id., at 227.
That analysis is instructive here. As with compulsory education past the eighth grade at the time the Court decided Yoder, sex education is also a “relatively recent development”—and the practice of teaching sexuality- and gender related lessons to young children even more so. And, as in Yoder, there is little to suggest that these lessons are critical to the students’ civic development.
The idea that we could examine our educational system and attempt to continue to improve it relative to "students' civic development" here is summarily dismissed.
Thomas goes on to make a series of assertions regarding when we had sex education in schools (it goes back longer than he says), how sex education is conducted in schools (without citing sources), and concludes by asserting that the "curriculum appears to be as novel as the storybooks themselves," again without citing any sources.
What's particularly wild: THIS CASE IS NOT ABOUT SEX EDUCATION. Thomas, though, cannot understand a reality in which we talk about people getting married or being who they are that isn't sex education.
Watch out, Cinderella!
Thomas continues:
Until very recently, young children have gone without sexual- and gender-identity education in school. Nothing suggests that the countless generations who did not receive such education failed to “mee[t] the duties of citizenship,” 406 U. S., at 227—or that, if they did, their failure was due to a lack of exposure to sexual- and gender-identity instruction during early adolescence.
As my sarcastic rejoinder notes, this is of course false: children have been receiving stories--STORIES!--that involve sexual and gender identity right along; those just were always heterosexual and cisgender centered stories. That those in a minority were badly treated throughout our nation's history is in fact a the failure to meet the duties of citizenship.
Thomas reveals his own lack of understanding (willful?) of the democratic process when he claims (page 9) the "Board ignored" the parents by not removing these books from the curricula. Sotomayor of course notes that parents never followed the process to request this. What I find more concerning is that Thomas appears to believe that the parents only would not be "ignored" if the Board did what those parents told them to. That isn't, of course, how a democratic deliberative process works at all.
That Thomas only views religion from a very specific frame is shown in his repetition of (page 10) "traditional religious teachings," and "traditional religious views" when arguing that the district's curriculua and the directions given to teachers contradict them. There is no such unity of "traditional religious views" in the United States. It does not exist. To claim them is to elevate a specific set of religious teachings from within specific religious sects to those being recognized.
Thomas repeats Alito's error (page 12) in dismissing the opt-out administrative burden by repeating that it can be a discrete unit of what he cites as (and here is when I gasped out loud) "religiously offensive material" to a single unit.
He concludes (page 13):
Insofar as schools or boards attempt to employ their curricula to interfere with religious exercise, courts should carefully police such “ingenious defiance of the Constitution” no less than they do in other contexts.
You can't make it up.
Sotomayor's dissent
Her opening is worth quoting in full, as is, frankly, much of her dissent:
Public schools, this Court has said, are “‘at once the symbol of our democracy and the most pervasive means for promoting our common destiny.’” Edwards v. Aguillard, 482 U. S. 578, 584 (1987). They offer to children of all faiths and backgrounds an education and an opportunity to practice living in our multicultural society. That experience is critical to our Nation’s civic vitality. Yet it will become a mere memory if children must be insulated from exposure to ideas and concepts that may conflict with their parents’ religious beliefs.
She continues:
Given the great diversity of religious beliefs in this country, 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.
The result will be chaos for this Nation’s public schools. Requiring schools to provide advance notice and the chance to opt out of every lesson plan or story time that might implicate a parent’s religious beliefs will impose impossible administrative burdens on schools. The harm will not be borne by educators alone: Children will suffer too. Classroom disruptions and absences may well inflict long-lasting harm on students’ learning and development.
Worse yet, the majority closes its eyes to the inevitable chilling effects of its ruling. Many school districts, and particularly the most resource strapped, cannot afford to engage in costly litigation over opt-out rights or to divert resources to tracking and managing student absences. Schools may instead censor their curricula, stripping material that risks generating religious objections. The Court’s ruling, in effect, thus hands a subset of parents the right to veto curricular choices long left to locally elected school boards.
The majority just empowered the heckler's veto on school curricula.
In walking through the case, Sotomayor notes that the review of curricula that brought these books in Montgomery County schoolrooms found a number of groups underrepresented and brought more than just the books here discussed forward. The district was motivated by what Sotomayor calls a long commitment to representing students.
On pages 3 and following of her dissent, Sotomayor goes to some lengths to explain the plot of these storybooks to her fellow justices, which would be funny were it not that the stakes were what they are. A young relative, as in Uncle Bobby's Wedding, being concerned that their relationship with the relative will change as a result is a plot of multiple children's books; this relative happens to be a man marrying a man.
It is on page 8 of the dissent that we discover that district policy was not followed by the parents who brought suit:
Rather than avail themselves of the district’s established process for challenging objectionable instructional material, petitioners sued the MCPS Board in federal court.
What it is that the parents asked for (page 9) is also instructive:
Petitioners asked the district court to enjoin MCPS from “denying [them] notice and opportunity to opt their children out of reading, listening to, or discussing the . . . Storybooks,” and “any other instruction related to family life or human sexuality that violates the Parents’ or their children’s religious beliefs.”
I will note again: to presume that a district let alone a classroom teacher should track what "any other instruction...that violates the Parents' or their children's religious beliefs" would be is not a realistic expectation4.
Sotomayor walks through the ways in which exposure to an idea alone has not been held to be a violation of one's First Amendment rights, including citing the majority's decision in Kennedy v. Bremerton School District, on which she dissented:...the Court rejected the argument that the exposure of children to a school coach’s religious prayer violated the Establishment Clause. See 597 U. S., at 538–539. Even though hearing and watching an authority figure engage in a denominational prayer with classmates at a school-sponsored event could, of course, undermine parents’ efforts to instill different religious beliefs in their children, a majority of this Court concluded that no cognizable “coercion” had occurred, and so no Establishment Clause violation inhered in the coach’s conduct.
Yes, she notes in a footnote that they were wrong in their decision: "Taking the majority's decision at face value, however..."
As she concludes:
In sum, never, in the context of public schools or elsewhere, has this Court held that mere exposure to concepts inconsistent with one’s religious beliefs could give rise to a First Amendment claim.Sotomayor writes that the majority has misconstrued Yoder (page 15):
The problem in Yoder was not that the law exposed children to material that would incidentally “undermine” religious beliefs, but that it compelled Amish parents to do what their religion forbade: send their children away rather than integrate them into the Amish community at home.
And in the footnote "It was thus impossible to both comply with the law and engage in the religious teaching at home deemed necessary by the Amish parents" because the law was requiring the children to be sent away to school. That is very much not the case here; both the classroom time and the parents' religious instruction can coexist.
In outlining this level of judicial review, Sotomayor writes (page 19):
The majority declares the inquiry will turn on several context clues: the “specific religious beliefs and practices asserted,” the “specific nature of the educational requirement or curricular feature at issue,” the age of the children, and the context and manner in which the relevant materials “are presented.” Ante, at 21. On that last point, the majority adds, courts should ask whether the materials are “presented in a neutral manner” or “in a manner that is ‘hostile’ to religious viewpoints and designed to impose upon students a ‘pressure to conform.’” Ibid. (quoting Yoder, 406 U. S., at 211).
That test lacks any meaningful limit.
She then walks through one of the books at hand (resulting in the already quoted footnote, which notes they've missed the main plot point), concluding (page 21)5:
Reading a storybook that portrays a family as happy at the news of their gay son’s engagement, the majority claims, is equivalent to a law that threatened the very “survival of [the] Amish communit[y]” in the United States. 406 U. S., at 209; see ante, at 25. To read that sentence is to refute it.
She puts her finger on what I agree is the central issue for the majority in the next paragraph:
The majority’s myopic attempt to resolve a major constitutional question through close textual analysis of Uncle Bobby’s Wedding also reveals its failure to accept and account for a fundamental truth: LGBTQ people exist. They are part of virtually every community and workplace of any appreciable size. Eliminating books depicting LGBTQ individuals as happily accepted by their families will not eliminate student exposure to that concept. Nor does the Free Exercise Clause require the government to alter its programs to insulate students from that “message.”
(emphasis added)
I'm going to quote the next part at length, because she then describes what they have left us with (page 22):
How are courts objectively to evaluate what amounts to a “very real threat” to a parent’s religious development of their child? Should they try to measure the intensity of the parent’s protestations, or must they simply accept the parent’s assertion that exposure to any particular book threatens their child’s religious upbringing? Or will judges simply know it when they see it and call their analysis “fact-intensive”? Ante, at 21. Perhaps cognizant of this problem, the majority insists repeatedly that its test looks for an “ ‘objective danger to the free exercise of religion.’” Ante, at 15, 17, 21, 25, 27. That incantation, however, will be cold comfort to courts attempting to apply this peculiarly subjective test.
What is more, if even potentially imagined “coy” messages hidden in a picture book are sufficient to trigger strict scrutiny when they conflict with a parent’s religious beliefs, ante, at 23, then it is hard to say what will not. Indeed, as the majority admits, “many books targeted at young children” contain a “normative” message, ante, at 22, about, say, the virtues of helping your community or the joys of getting married. (How many children’s books, after all, end with a joyous wedding and the couple living happily ever after?) The same is true for books and textbooks throughout any public school curriculum.
Given the multiplicity of religious beliefs in this country, innumerable themes may be “contrary to the religious principles” that parents “wish to instill in their children.” Ante, at 23. Books expressing implicit support for patriotism, women’s rights, interfaith marriage, consumption of meat, immodest dress, and countless other topics may conflict with sincerely held religious beliefs and thus trigger stringent judicial review under the majority’s test. Imagine a children’s picture book that celebrates the achievements of women in history, including female scientists, politicians, astronauts, and authors. Perhaps the book even features a page that states, “Girls can do it all!” That message may be “directly contrary to the religious principles that” a parent “wish[es] to instill in their chil[d].” Ibid. In the majority’s view, it appears, that is sufficient to trigger strict scrutiny of any school policy not providing notice and opt out to objecting parents.
And it goes beyond curricula (pages 23-24):
Nor is the Court’s reasoning seemingly limited to reading material. Interactions with teachers and students could presumably involve implicit “normative” messages that parents may find “contrary to the religious principles” they wish to impart to their children and therefore “hostile” to their religious beliefs. Ante, at 22–23, 25. A female teacher displaying a wedding photo with her wife; a student’s presentation on her family tree featuring LGBTQ parents or siblings; or an art display with the phrase “Love Is Love” all could “positively reinforc[e]” messages that parents disapprove on religious grounds. Ante, at 24. Would that be sufficient to trigger strict scrutiny if a school fails to provide advance notice and the opportunity to opt out of any such exposure? The majority offers no principled basis easily to distinguish those cases from this one.
Hard questions might arise, too, from a school’s efforts to encourage mutual respect or to prevent bullying. If a student calls a classmate a “sinner” for not wearing a headcovering or coming out as gay, how can a teacher respond without “undermining” that child’s religious beliefs? Can parents litigate the content of teacher responses and impose scripts or opt-out policies for everyday interactions designed to foster tolerance and civility? Again, the majority gives no guidance.
As has been noted by those who actually manage them, opt-outs are not nearly the easy thing the majority argued (page 26):
Establishing a new constitutional right to opt out of any instruction that involves themes contrary to anyone’s religious beliefs will create a nightmare for school administrators tasked with fielding, tracking, and operationalizing highly individualized and vaguely defined requests for particular students, as this Board learned.
What will be the result?
Few school districts will be able to afford costly litigation over opt-out rights or to divert resources to administering impracticable notice and opt-out systems for individual students. The foreseeable result is that some school districts may strip their curricula of content that risks generating religious objections. See Brief for Justin Driver et al. as Amici Curiae 22. In the current moment, that means material representing LGBTQ students and families, like the Storybooks here will be among the first to go, with grave consequences for LGBTQ students and our society. See Brief for State of Maryland et al. as Amici Curiae (discussing the importance of efforts like MCPS’s in combating harassment against LGBTQ youth). Next to go could be teaching on evolution, the work of female scientist Marie Curie, or the history of vaccines.
In effect, then, the majority’s new rule will hand a subset of parents a veto power over countless curricular and administrative decisions. Yet that authority has long been left to democratically elected state and local decisionmakers, not individual parents and courts. This Court has repeatedly recognized the wisdom of that regime, including in Yoder itself.
Sotomayor notes that there is no reason to believe the process as has been is not working (page 28):
There is also real reason to think that the democratic process and local mechanisms for parental advocacy were working here. Three of the seven MCPS Board members were voted out during the most recent election... Parents, additionally, remain free to raise objections to specific material through the multilevel appeal system established by Board and state policies in Maryland, see supra, at 7–8, which the parents in this case apparently never tried to pursue. The Court today subverts Maryland’s functioning democratic process, whistling past decades of precedent that recognizes the primacy and importance of local decisionmaking in this area of law.
She then notes the deference on which the majority has insisted to democratic outcomes in other contexts, citing both Dobbs and Skrmetti, "[y]et today, it seems, those principles do not apply to the Government when it designs curricula for a free public education." She expands in a footnote:
Having refused to apply “the Bill of Rights and the doctrine of judicial review [to] protect individuals who cannot obtain legislative change,” ante, at 35, in several recent decisions, see, e.g., Dobbs, 597 U. S., at 231, 269; Skrmetti, 605 U. S., at ____, ___ (slip op., at 9, 24), the Court now asserts it has no choice but to play school board here. Of course, our precedent requires just the opposite result. See supra, at 13–19.
She then walks through the misinterpretation and out-of-context reading of the guidance for teachers, including along the way the very real bullying of LGBTQ+ students.
And (page 34):
Lastly, the majority is, of course, right to observe that not all parents can afford to send their children to private religious schools or to provide for homeschooling. See ante, at 32–33. Yet for public schools to function, it is inescapable that some students will be exposed to ideas and concepts that their parents may find objectionable on religious grounds. Indeed, this Court has long recognized that reality. See Lee v. Weisman, 505 U. S. 577, 591 (1992) (observing students may be “expos[ed]” or “subjected during the course of their educations to ideas deemed offensive and irreligious”). To presume that public schools must be free of all such exposure is to presume public schools out of existence.
Sotomayor also addresses the idea that books discussed could be relegated to a separate unit (page 36-37):
It applies, expressly, to “any other similar book,” ante, at 41, an amorphous category the Court declines to define, but which will presumably include all other books that contain “subtle” messages on gender and sexuality, even not involving LGBTQ characters, that the parents here (and others in the future) might find objectionable, ante, at 23.
The logic of the Court’s ruling will also apply to countless other topics, interactions, and activities that may conflict with a parent’s religious preferences. What of the parent who wants his child’s curriculum stripped of any mention of women working outside the home, sincerely averring that such activity conflicts with the family’s religious beliefs? It blinks reality to suggest that the simple solution for schools is to create new discrete units of instruction to cover any set of material to which a parent objects. The Court’s analysis thus reflects, all too well, the “obvious fact that courts are not school boards or legislatures, and are ill-equipped to determine the ‘necessity’ of discrete aspects of a State’s program of compulsory education.” Yoder, 406 U. S., at 235.
She addresses Thomas' argument of this material not historically taught in a footnote:
JUSTICE THOMAS goes yet further. He argues that the strict scrutiny analysis should require schools to identify a “history and tradition” of teaching the relevant subject or material. Ante, at 2 (concurring opinion); see ante, at 3–5 (faulting the Board for failing to demonstrate a history and tradition of “LGBTQ+-inclusive” teaching). That approach fails to appreciate the constantly evolving nature of education. Classes on computer literacy, robotics, and film studies, to take just a few examples, are modern developments. In the early 19th century, moreover, “the common curriculum usually included a handful of elementary subjects,” such as “reading, writing, and arithmetic.” W. Reese, America’s Public Schools 28 (2005). Under JUSTICE THOMAS’s test, it appears, schools may have no compelling interest in teaching anything beyond those topics. It is not clear, either, how far back JUSTICE THOMAS would have courts look. Should courts limit their inquiry to the founding era or the 19th century for guidance on which topics schools have a sufficiently compelling interest in teaching for purposes of this “history and tradition” test? It is inconceivable that learning should be shackled to a moment in time.
One would not want a separate unit in any case, as "The point of inclusivity is to use books representing a diversity of identities and viewpoints the same way one might use any other book, communicating that one’s LGBTQ classmates should be treated in the same manner as anyone else."
Sotomayor's closing reads:
Today’s ruling threatens the very essence of public education. The Court, in effect, constitutionalizes a parental veto power over curricular choices long left to the democratic process and local administrators. That decision guts our free exercise precedent and strikes at the core premise of public schools: that children may come together to learn not the teachings of a particular faith, but a range of concepts and views that reflect our entire society. Exposure to new ideas has always been a vital part of that project, until now. The reverberations of the Court’s error will be felt, I fear, for generations.
Unable to condone that grave misjudgment, I dissent.
1Headlines of course are always limiting, but "religious parents" as a framing is always problematic, as "religion" isn't monolithic. News, as it will turn out, to a few of the justices.
2I think it matters that in his dissent in part, Justice Douglas recognized the Amish children as having their own independent rights. It makes you think that this wasn't part of what was recognized by the majority; it also has bearing in this decision, in which the majority does not speak of the rights of the children involved, only their parents' right to instruct them.
3Had this been an essay from one of my students, it would have been returned with the comment "your argument is not supported by any sources."
4Also, how is this discovered? Tracked? How is this not itself a violation of First Amendment protections?
5She also appends what appears to be the entire text of Uncle Bobby's Wedding to her dissent, so you can't take it out of context.
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