School curricula have evolved over time, shaped by new technologies, discoveries, and shifting societal ideals. This trend is more evident in STEM fields where mathematical proofs and scientific journals lay the foundation for the change. However, adapting liberal arts curricula—especially in areas like literature and social studies—can be more complex and contentious. In Montgomery County, Maryland, the Montgomery County Board of Education aimed to update their elementary school Language Arts and English curriculum of their school district by including children’s literature with LGBTQ+ characters. The goal was to better reflect the diversity of the community and promote inclusivity. The district initially had an “opt-out” option for parents who wished to exclude these stories from their child’s education. However, due to the high number of opt-outs, the district found it logistically unfeasible to continue exempting students from the material, leading to the cancellation of the opt-out option. In response, a coalition of parents and religious groups filed suit seeking to enjoin the forced inclusion of these books into their children’s curriculum, asserting that such a policy impermissibly burdened their right to free religious exercise.

The Supreme Court granted the plaintiffs a preliminary injunction and enjoined the school district’s policy. In an opinion authored by Justice Alito, the Court held that the introduction of LGBTQ+ storybooks – without a notice to parents on when those books would be taught and the opt-out option – burdened religious exercise in violation of the Wisconsin v. Yoder  test – which holds that government policies may not substantially interfere with the religious development of children. The Court examined the substance of the books and found that they expressed views that were hostile to the parents’ religious beliefs, and to the beliefs that parents may wish to instill in their children. The danger was further exacerbated by the young age of the elementary school students, with the Court noting that the “coercive nature of the classroom” is especially strong where younger students are concerned. As such, the Court found that indirect exposure to the subject matter of the books through storytelling violated the First Amendment.

Justice Thomas’s concurrence enforced the majority opinion through a historical analysis of educational institutions. Thomas focused on the purpose of public education, namely a student’s civic development. He hypothesized that sexual- and gender-identity education are relatively new concepts, and that schools have served their intended purpose for centuries without needing to teach these subjects. As such, Thomas argued that the district’s need to update its English curriculum did not overcome a parent’s right to raise their child in a historically rooted religious belief. However, in her dissent, Justice Sotomayor noted that courts often lack the specialized knowledge and experience to determine the appropriateness of a district’s curricula. In light of the constantly evolving nature of education, Justice Sotomayor argued that courts are ill equipped to determine what type of curriculum meets the needs of any given generation of students.

In light of the Court’s ruling, schools should have two main considerations when updating their English curriculum. The first is whether the new curriculum is necessary for the civic development of their students. Next, the school should carefully structure its “opt-out” policies when adding curriculum that may conflict with a parent’s intended religious upbringing of their child. The option would need to remain workable, even if a large number of students opted out, to avoid the logistical issues faced by the Montgomery County School District.

For more information about this article, please contact Tressler Attorney Alex Myers at amyers@tresslerllp.com.

About the Author

Alexander (Alex) Myers serves as an associate in Tressler’s Local Government and Litigation Practice Groups. His practice is primarily focused on civil rights litigation, tort litigation, employment litigation and counseling, and matters arising from section 1983, and police misconduct. Alex has successfully defended his clients through all stages of litigation, and through that process, has gained valuable litigation skills. Click here to read Alex’s full attorney bio.