Notice and Opt-Out Options for Curriculum That Conflicts with Parental Religious Beliefs

Notice and Opt-Out Options for Curriculum That Conflicts with Parental Religious Beliefs

Overview: In Mahmoud v. Taylor (2025), the U.S. Supreme Court held that a Maryland public school district violated the Free Exercise Clause of the First Amendment by denying parents the opportunity to opt their elementary-aged children out of classroom instruction that affirmatively promoted beliefs in conflict with their sincerely held religious convictions.

The Court articulated that a "substantial burden" on religious exercise arises only when all three of the following conditions are met:

1. The instruction is delivered by a school authority figure;
2. The content presents moral or identity-based beliefs as affirmatively correct;
3. The student is directed, required, or pressured to affirm those beliefs.

This third factor is the linchpin of the Court's analysis. Without it, the mere presence of inclusive content or acknowledgment of diverse identities is not enough to establish a constitutional violation.

Examples from Mahmoud: The Court was particularly troubled by teacher training materials accompanying certain LGBTQ+-inclusive texts introduced to K–5 students. These materials encouraged specific, prescriptive responses to student objections, such as:

• If a student said that two men cannot get married, teachers were advised to respond, “Two men who love each other can decide they want to get married.”
• If a student questioned the legitimacy of a transgender identity, teachers were encouraged to say, “That comment is hurtful.”
• If a student asked, “What’s transgender?”, teachers were instructed to reply, “When we’re born, people make a guess about our gender… sometimes they’re right, sometimes they’re wrong.”
• Teachers were also trained to "disrupt either/or thinking" in students.

These examples illustrated to the Court that students were being pressured to adopt specific beliefs, not simply being exposed to diverse viewpoints.

Administrative Challenges and Legal Risks: As the dissent noted, Mahmoud creates new administrative challenges. Expanding opt-out rights based on sincerely held religious beliefs presumes a level of knowledge about families' individual beliefs that districts do not and should not track. There is also the potential for tension with anti-discrimination laws, including NJLAD and Title IX, and with New Jersey’s Anti-Bullying Bill of Rights Act.

To manage these tensions, districts should:

• Focus policy implementation on the third factor: whether students are being directed or compelled to affirm a belief.
• Provide training for educators on how to teach inclusive curriculum in a non-directive, respectful, and legally compliant manner.

Model Policy Recommendations: Districts should update their Religious Opt-Out policies to ensure they are clear, equitable, and tailored to Mahmoud. A sound policy should:

• Avoid embedding hidden biases against religious beliefs or singling out religious requests for disfavored treatment. See Children’s Health Defense, Inc. v. Rutgers, 2022 U.S. Dist. LEXIS 171798, *27 (D.N.J. 2022).
• Require that parental opt-out requests:
  1. Identify the specific instructional material or activity;
  2. Describe the religious belief that would be substantially burdened;
  3. Explain how the student would be directed or required to affirm the belief.

If a request satisfies these criteria, the opt-out should be granted to avoid the risk of unconstitutional or discriminatory application.

Important Clarifications for School Communities:

• Mahmoud does not prohibit the inclusion of LGBTQIA+ individuals, families, or perspectives in public school curriculum.
• Teachers may refer to their own identities or family members (e.g., "My husband and I went to the beach") in the same way any other employee would, as long as students are not directed to affirm a particular belief.
• Respectful acknowledgment of diverse identities and communities is not a constitutional violation.
• Districts remain fully obligated to comply with NJLAD, Title IX, and state anti-bullying laws protecting LGBTQIA+ students and staff.

Districts can comply with Mahmoud without compromising inclusive practices or exposing themselves to liability. The key is a clear, viewpoint-neutral policy that allows opt-outs only where required by law and implements them without undermining the district’s commitment to equity and respect for all students.

Public Notice

Evaluation Timelines

Parent Waivers