Courts continue to undermine the basic rights of parents and educators

Two recent cases over divergent issues in education involving human sexuality demonstrate how ideology continues to trump the rights of parents and educators. These disputes illustrate ongoing judicial indifference, if not hostility, to the religious freedom rights of parents and educators in public schools.

Mahamoud v. McKnight

In Mahamoud v. McKnight, on May 15, 2024, a divided Fourth Circuit, in a two-to-one order, affirmed that Muslim, Catholic and Ukrainian Orthodox Christian parents in Maryland were not entitled to a preliminary injunction allowing them to opt their pre-K and elementary school-aged children out of exposure to LGBT+ friendly curricular materials to which they objected on religious grounds. Among the material the parents challenged is Pride Puppy!, a book about a Pride Day parade aimed at three and four-year-olds in pre-K and Head Start classes who were directed to find such terms as “[drag] queen” and “king”, “leather”, “lip ring”, and “intersex”. Other books include stories about a planned “same-sex marriage”, a transgender child’s rainbow-colored wig, and elementary school students replacing girl/boy bathroom signs with non-binary signs.

The seeds for controversy were planted in October 2022 when the Montgomery County Board of Education added LGBTQ+-Inclusive Books to its English Language Arts Curriculum. In March 2023 the board allowed parents to opt their children out of classes in which the books were discussed. A day later, though, the board reversed course, announcing it would neither allow parents to opt their children out of classes in which these books were discussed nor inform them when they were scheduled to be read.

The federal trial court rejected parental claims that officials violated their First Amendment right to free exercise of religion in light of the board’s goal of improving inclusivity for the “LGBTQ+ community”. The judge disagreed parents have the fundamental right to be involved in or informed about the material to which their children are exposed because teachers did not force students to agree with what they read.

On appeal, a split Fourth Circuit’s affirmed in favor of the board, declaring the parents failed to present sufficient evidence officials violated their free exercise rights or undermined the values they sought to instill in their children. The majority wrote that absent evidence the books were used “in a way that directly or indirectly coerces the parents or their children to believe or act contrary to their religious faith,” they did not demonstrate they would have succeeded on the merits of their claim.

The dissent responded that the board “burdened these parents’ right to exercise their religion and direct the religious upbringing of their children by putting them to the choice of either compromising their religious beliefs or foregoing a public education for their children.” The dissent conceded that while “[c]ourts rightly defer to schools, as a general matter, for curriculum decisions,” they lack the authority to “…burden the free exercise of religion in a way that is not both neutral and generally applicable.”

Kluge v. Brownsburg Community School Corporation

In Kluge v. Brownsburg Community School Corporation, on April 30, 2024, a case originating early in 2020, a federal trial court in Indiana upheld the dismissal of a high school orchestra teacher who, rather than violate his Christian beliefs by calling transgender students by their preferred names or pronouns referred to them by their last names. The board initially accommodated the teacher by allowing him to use last names.

On remand from the Seventh Circuit, the trial judge applied the Supreme Court’s 2024 ruling in Groff v. DeJoy which requires employers to make reasonable religious accommodations for their employees not causing them undue hardships. The court maintained that allowing the teacher to call students by their last names would have caused the board an undue hardship, thereby outweighing his rights.

The court decided that because the board’s “business” was to provide supportive learning environments, accommodating the teacher unduly burdened its ability to educate all of its students. Upholding the teacher’s dismissal, the court accepted the board’s three arguments. First, the court agreed that allowing the teacher to use last names psychologically harmed two of his transgender student; he conceded this could occur. Second, the court accepted the board’s claim that because students, parents, and teachers complained about the orchestra instructor’s behavior, it could terminate his employment. Third, the court was satisfied that if the board allowed the teacher to use last names it might have faced litigation for violating Title IX by discriminating against the transgender students, placing its federal funding at risk.

Because Kluge differs from judgments of the Sixth Circuit, in a case from a public university in Ohio, and Supreme Court of Virginia involving a teacher, further litigation is likely to clarify the rights of all involved. These cases agreed with Supreme Court precedent, albeit in non-education-related disputes, in which it consistently reasoned that individuals cannot be forced to communicate messages inconsistent with their religious beliefs because this was constitutionally impermissible compelled speech.

Some observations

In a nation founded at least in part on religious freedom, as reflected in Mahamoud and Kluge, some lower courts and school officials have lost sight of this ideal by usurping parental rights and the ability of educators in public schools to be free from compelled speech violating their beliefs. At a time when there is so much talk of coexistence and openness to others, why does this not go both ways in protecting religious freedom as ideology seeks to trump parental and educator rights?

Key questions are raised, including what the appropriate age is at which children should be exposed to material for which they are intellectually and emotionally unprepared. Do, for example, three and four-year-old children need to learn about drag queens and kings, lip rings, and intersex? How can such lessons benefit youngsters who neither understand these terms nor need to learn about them at such tender ages?

Ignoring parental rights, the Fourth Circuit stood 1925’s Pierce v, Society of Sisters on its ear. In Pierce the Supreme Court famously wrote that “[t]he child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” Some lower courts and educators continue to ignore the Court’s clear message about protecting parental rights. In Mahmoud, for example, the Fourth Circuit allowed the board to deny parents their rights to raise legitimate questions about the appropriateness of the materials to which their young children were exposed as they imposed their own ideological perspectives on students and ultimately their families.

At the same time, because other courts followed the lead of Supreme Court in rejecting compelled speech, how far can judges go in allowing school officials, as in Kluge, to require educators to violate their beliefs by using pronouns or certain names? Where will this stop? Could mandating pronoun or name use extend to requiring teachers to espouse only board-favored political and other perspectives? Similarly, as in Mahmoud, should not common sense dictate that parents have the right to excuse their children from age-inappropriate materials rather than require them to sit through instruction inconsistent with their family and religious values?

Yes, all people, regardless of their sexual orientations and/or religious beliefs, must be treated with respect. Consequently, it is perplexing why proponents of mandating the inclusion of LGBT+ friendly material can proceed with what can be described as near-religious fervor in exposing children as young as three and four to material they simply cannot understand. It is equally as unclear why officials seek to compel teachers to abandon their faiths by using pronouns inconsistent with their values.

And, yes, children certainly need to learn about divergent points of view, within reasonable parameters. Paradoxically, it is highly doubtful these same supporters of inclusion would be open to instruction on a topic such as world religion to help develop a better understanding of the beliefs of others based on their fear of violating the so-called separation of church and state.

Critics of religion typically oppose any mention of it in public schools for fear of exposing children, and even educators, to faith-based values different from their own. If this approach is followed to its logical conclusion, a sound argument can be made that having children as young as three and four locate words such as “intersex” and “drag queen” in Pride Puppy is just as much about values as those professed by the Muslim, Catholic, and Orthodox parents who opposed Montgomery County’s curriculum. Thus, it seems evident this fight is not so much over values as it is over whose values will prevail.

Another question remains over how far some courts can go in enabling public school officials to trample over parental and teacher rights by mandating compliance with ideological perspectives with which they disagree. Hopefully, people of good will on both sides of these challenging issues can acknowledge and protect the primacy of parental rights to direct the education of their children, while allowing teachers to return to the basics of teaching reading, writing, and arithmetic.