California officials must quickly move to re-write state policy in the wake of the Supreme Court’s decision on Friday that allows families to opt their children out of lessons with LGBTQ+ characters and pro-LGBTQ+ themes.
The case involved new “LGBTQ-inclusive” storybooks used in pre-kindergarten to 5th-grade classes in Montgomery County, Md., a suburb of Washington. The potential implications go well beyond storybooks and touch on California’s approach to education.
California law requires students to learn and be provided age-appropriate instructional materials at all grade levels that explain and incorporate the “role and contributions” of, among others, “lesbian, gay, bisexual, and transgender Americans.”
In some important respects, the California approach to LGBTQ+ inclusion appears untouched. In representing the parents before the Supreme Court, Eric Baxter, an attorney for the Becket Fund for Religious Liberty, said they “were not objecting to books being on the shelf or in the library. No student has a right to tell the school which books to choose,” he said.
Under the Supreme Court’s ruling, which appeared to follow this reasoning, California’s learning goals can remain unchanged — and they could still remain mandatory policy for local school boards. However, LGBTQ-inclusive lessons would no longer be required material for any particular family that objected to the content.
In opposing the Maryland parents, Alan Shoenfeld, an attorney for the Maryland school board, had argued to the justices that the goal for the storybooks was “to foster mutual respect. The lesson is that they should treat their peers with respect.”
However, writing for the high court and the six-justice majority, Justice Samuel Alito concluded that the school district’s practices were a form of attempted indoctrination that could conflict with constitutionally protected religious belief.
As an example, he wrote that many Americans oppose same-sex marriage on religious grounds, and yet “the storybooks … are designed to present the opposite viewpoint to young, impressionable children who are likely to accept without question any moral messages conveyed by their teacher’s instruction. The storybooks present same-sex weddings as occasions for great celebration and suggest that the only rubric for determining whether a marriage is acceptable is whether the individuals concerned ‘love each other.’”
This reasoning aside, the ruling could leave intact much of California’s approach, although no particular family would be forced to learn the state’s intended message through its LGBTQ-inclusive content.
The ruling raises a score of related issues, such as how an opt-out would apply at different ages.
State guidelines note that second-graders, by studying the stories of “a diverse collection of families,” including those “with lesbian, gay, bisexual, or transgender parents and their children … can both locate themselves and their own families in history and learn about the lives and historical struggles of their peers.”
Storybooks in elementary school are one thing, but what about social studies in high school?
The California education code requires that instruction in social sciences include the role and contributions of “lesbian, gay, bisexual, and transgender Americans,” among other groups, “to the economic, political, and social development of California and the United States of America, with particular emphasis on portraying the role of these groups in contemporary society.”
The new rules of the road could be challenging to administer, as the previous experience of the Maryland district bore out. That school system had originally allowed families to opt out of lessons with LGBTQ-themed storybooks, but so many families did so that the policy was reversed.
“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,” Justice Sonia Sotomayor wrote in her dissent. “The result will be chaos for this Nation’s public schools.”
How far the objections could go is another question for California.
A group of parents in Los Angeles protested a story book that briefly noted: “Some children have two mommies or two daddies.”
The L.A. school board essentially ignored their objections and then-board president Jackie Goldberg read the entire storybook aloud at a televised Board of Education meeting.
“A great book,” she said after closing the cover. “I recommend it.”
Strong reaction
Reaction to the Supreme Court decision arrived quickly from many quarters, including from President Trump, who called it a “great ruling for parents.”
Cecillia Wang, national legal director of the American Civil Liberties Union, called the decision “a drastic break from decades of precedent.
“For the first time now,” she said, “parents with religious objections are empowered to pick and choose from a secular public school curriculum, interfering with the school district’s legitimate educational purposes and its ability to operate schools without disruption – ironically, in a case where the curriculum is designed to foster civility and understanding across differences.”
Louisiana Republica Senator Bill Cassidy, chair of the Senate Health, Education, Labor, and Pensions praised the decision: Students should not be forced to learn about gender and sexuality subject matter that violates their family’s religious beliefs.”
Supporters of LGBTQ+ rights spoke of another attack from the political right.
“This decision is another wolf in sheep’s clothing from a Court that has entirely lost the plot on the separation of church and state,” said Kimberly Inez McGuire, executive director of URGE (Unite for Reproductive & Gender Equity). “The objections of a few religious fundamentalists are being used to override school curriculum selected by an inclusive process driven by educators and experts. This ruling could allow the petty bigotries of any one parent to degrade the education available to all.”
But Julianne Fleischer, a Murrieta-based attorney with the law group Advocates for Faith and Freedom, called the decision a “win for religious liberty.”
“Parents — not the state — are best equipped to make decisions about what their children are taught, especially on sensitive matters involving gender and sexuality,” Fleischer said. “The government doesn’t own our children and this decision rightfully reflects not only the sacred, but legal right of parents to direct their children’s religious education. Families should not be forced to choose between their sincerely held religious convictions and participation in public education.”
The precedent of sex ed
There is an obvious precedent for the opt-out approach: sexual education.
In sex ed in California, the curriculum must recognize that people have different orientations and be inclusive of same sex relationships and also teach about gender identity and explore the harm of negative gender stereotypes.
At the same time, California, like nearly every other state, allows parents to opt out of sex education classes for their children. In California that has meant families already had the option of avoiding LGBTQ+ content when it came up within the context of sex ed.
However, up until now at least, parents could not opt children out of LGBTQ+ content as a standalone topic outside of sex ed.
Divided religious communities
The Maryland case, Mahmoud vs. Taylor, was pursued by a group of Muslim, Catholic and Ukrainian Orthodox parents, who sought an order allowing their children to be removed from class during the reading lessons. They said the books conflicted with the religious and moral views they taught their children.
A federal judge and the 4th Circuit Court refused to intervene. Those judges said the “free exercise” of religion protects people from being forced to change their conduct or their beliefs, neither of which were at issue in the school case.
The issue has divided religious communities in California, including within the Muslim community, a key constituency in pursuing the Maryland case.
“If books of LGBTQ+ themes are the excuse for the desire to opt out, then who’s to say books depicting Black, Jewish and Muslim children and their traditions would not be included to be “opted out” at a later date?” said Ani Zonneveld, the founder of Muslims for Progressive Values, a Los Angeles-based organization that was part of an amicus filing in the case opposing opt-outs.
“We are not a theocracy. Discrimination should therefore not be permitted in the name of religion.”
Tarik Ata, an Orange County-based sheikh, said he supported “parents’ rights to guide their children’s moral and religious education.”
“As a member of the American Muslim community, our core values — rooted in religious freedom, family, and respect for differing beliefs — guide our stance on this Supreme Court case,” said Ata, who is a board member of the Islamic Shura Council of Southern California, which issues guidance on religious issues to Muslim communities.
“In our tradition, parents bear the responsibility for their children’s spiritual growth, and when classrooms introduce topics that conflict with deeply held convictions, families should have the right to make choices without penalty or stigma.”
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