Legal Docket: Parental rights vs. school curricula

NICK EICHER, HOST: At the U.S. Supreme Court last week, a debate you might once have considered unthinkable: Whether public schools can require four-year-olds to read about drag queens, about leather culture, about same-sex marriage—and whether parents have any right to shield their young children from it.

JUSTICE NEIL GORSUCH: That's the one where they are supposed to look for the leather and things and bondage things like that—

ALAN E. SCHOENFELD: It’s not bondage—” …

JUSTICE AMY CONEY BARRETT: It’s a drag queen—

GORSUCH: —drag queen—a drag queen.

SCHOENFELD: —the leather that they're pointing to is a woman in a leather jacket, and one of the words is drag queen—

GORSUCH: And they’re supposed to look for those?

SCHOENFELD: It is an option at the end of the book, correct.

JUSTICE SAMUEL ALITO: What are the ages of the children who were involved here?

ERIC BAXTER: These books were approved for a pre-K which in Montgomery County can start as early as three if they're going to turn four that fall.

If they’re going to turn 4 in the Fall … they’ll read of a little girl whose mom agrees with her: that she’s a boy … or about a favorite uncle marrying his boyfriend.

ALITO: It expresses the idea, subtly, but it expresses the idea, this is a good thing. “‘Mommy,’ said Chloe, ‘I don't understand. Why is Uncle Bobby getting married?’”

“‘Bobby and Jamie love each other,’ said Mommy, ‘… when grown-up people love each other that much, sometimes they get married.’”
I mean, that's subtly sending a message this is a good thing.

BARRETT: It's not just some people think X, some people think Y. It's saying, ‘This is the right view of the world. This is how we think about things. This is how you should think about things.’ This is like two plus two is four.

CHIEF JUSTICE JOHN ROBERTS: Counsel, you said that nothing in the policy requires students to affirm what’s being taught or what’s being presented in the books. Is that a realistic concept where you’re talking about a five-year-old?

Today on Legal Docket, the clash between parental rights, religious freedom, and the vision for public education.It’s Monday the 28th of April, and you’re listening to The World and Everything in It from WORLD Radio. Good morning! I’m Nick Eicher.

JENNY ROUGH, HOST: And I’m Jenny Rough. We’ll get to the legal arguments in a moment. But first … I can’t unpack this case without laying a foundation. So I’ll begin by shining a light on a basic belief held through the ages and largely still today—regardless of faith. Namely, this:

ELIZABETH URBANOWICZ: The family is the primary vehicle through which children should be learning about sexuality.

Elizabeth Urbanowicz of Foundation Worldview. Her organization develops resources to equip adults to teach kids how to carefully evaluate ideas and understand truth. Her materials include guidance for parents talking to their kids about sex.

URBANOWICZ: From a Biblical perspective, I would say that the public school system, or even the Christian school system, or even the church should never be the ones introducing sexuality to children. That is always the responsibility of the family.

One best begun early.

URBANOWICZ: We recommend that parents have the first of many sex and sexuality talks with their children around the age of four.

Not every single detail … but at least the fundamentals.

URBANOWICZ: If we want our children to come to us with their questions, and we want them to have an understanding that sexuality is an inherently good gift from God, we have to start these conversations before the world does.

EICHER: Indeed, the world is starting these conversations earlier and earlier … leaving many parents in the dust. But a group of parents in Montgomery County Maryland is pushing back … and last week pushed all the way to the Supreme Court, where eyebrows raised—and jaws dropped—over the legal arguments around exposure to controversial ideas versus coercion to embrace them.Initially, the school board respected the freedom to disagree. It gave parents the freedom to opt out of a child’s lesson if the objectionable books are read or taught. But when too many families exercised the freedom, the board reversed course: No opt-outs. No exceptions.

Three families sued—Muslim, Catholic, and Ukrainian Orthodox … arguing their First Amendment rights were violated.

ROUGH: The question before the high court is simple but weighty: Is the government burdening families’ rights freely to exercise their religion by refusing the opt-outs?The school board argues it’s simply trying to foster civility in a pluralistic community. Attorney Alan Schoenfeld:

ALAN SCHOENFELD: Students do not need to accept, agree with or affirm anything they read. … The lesson is that students should treat their peers with respect.

The parents don’t buy it. They say this is about indoctrination. Here’s their attorney, Eric Baxter, highlighting the beliefs the books clearly set forth.

ERIC BAXTER: ... among other controversial matters, doctors guessed at their sex when they were born, and that anyone who disagrees is hurtful and unfair. Forcing petitioners to submit their children to such instruction violates their religious beliefs.

There’s a reason the First Amendment is first … and out of its compact 45 words protecting five express freedoms … religion is first. No surprise, then, oral argument ran for an extraordinary two and a half hours!The First Amendment says that Congress shall make no law prohibiting the free exercise of religion. That’s been extended also to limit state government entities from interfering. Public school boards, for example.

EICHER: And the Supreme Court has held that the First Amendment includes the right of parents to guide the religious education and upbringing of their children.

Going back to 1972 … the court took up the case Wisconsin versus Yoder. It involved a state mandate in Wisconsin requiring kids to attend public school until the age of 16. Yoder stood for Amish families who wanted their children educated at home by age 14 to avoid the worldly influences of high school. In the case, the court sided with the Amish … saying the requirement placed an unconstitutional burden on the religious rights of the families.
Likewise, the parents here argue the school board has burdened their religious beliefs.

ROUGH: Burden is key. The threshold inquiry is whether the school board’s policy places a free-exercise burden on the parents.In the educational context, there’s disagreement on how to interpret the word.
The parents argue the test of what amounts to an unconstitutional burden … is whether the government interferes with the parents’ rights. They say in this case, it does. They say that kids in their years of innocence … when taught information about sex … must have moral principles included. Their faith calls for it and no government can take that away.

EICHER: Significantly … the Montgomery County Maryland school board allows middle school kids to opt-out of sex education. So Justice Elena Kagan asked the attorney for the parents where he’d draw the line on opt outs.

JUSTICE KAGAN: Does it matter what the subject matter is? Does it matter what the age of the child is? Does it matter what the nature of the instruction is?

EICHER: She asked what about a 16-year-old in a biology class on evolution?Justice Sonia Sotomayor added more examples. What about books on women who work outside of the home? Divorce? Interfaith marriage?
The parents’ attorney Baxter said opt outs for religious beliefs apply regardless.

Again, Justice Kagan:

KAGAN: That’s a pretty broad rule. It will be like, you know, opt-outs for everyone.

ROUGH: Justice Ketanji Brown Jackson disagreed that parents lack an opt-out here. Parents can homeschool … or send their kids to private school, notwithstanding the expense.

JUSTICE BROWN-JACKSON: In so many other constitutional doctrines, we don't focus on whether people actually can afford to protect their rights. ... You still have the right to get an attorney in a civil case even if you can’t afford it.

ROUGH: The school board argues the test for burden is far more difficult to prove. It goes beyond exposure. The standard is coercion. Mere exposure to the books … it argues … doesn’t compel kids to affirm the ideas the books present.But Chief Justice John Roberts questioned the logic.

ROBERTS: I mean, I understand the idea when you're talking about a sophomore or junior, whatever in high school, you know, where the point is you want them to sort of push back on some of this, but I'm not sure that same qualifying factor applies when you're talking about five year olds.

ROUGH: You may notice this is all theory. That’s because the issue here is a preliminary injunction the parents sought … to stop any harm before it happens. As a result … the record is pretty sparse as far as how the books have actually been used in classrooms.Justice Barrett acknowledged that much. But she also pointed out that to the extent they are used, the books present a worldview clearly contrary to the parents’ sincere beliefs.
If the justices decide it was wrong for the lower court to define burden as coercion … that instead if the proper definition of “burden” is interference … then the inquiry could stop here, and the case sent back for proper analysis.

EICHER: But there are other arguments the parties served up, too.
Under Employment Division versus Smith, the analysis the court would perform is whether the opt-out policy is (a) neutral and (b) generally applicable. The parents say it’s not (b)—not generally applicable—because the county allows discretionary opt-outs for things like Valentine’s Day and birthdays, but draws a line for storybooks. So failing even a single prong of that test would mean the policy would face the highest legal standard of review … strict scrutiny, a very difficult standard for a state to meet.
Another pathway to a strict scrutiny analysis is to show the county’s policy was not neutral … that it was motivated by hostility toward religion.

ROUGH: Mary Rice Hasson is cofounder of the Person and Identity Project at the Ethics and Public Policy Center. It filed a friend of the court brief on behalf of the Maryland parents.She adds two more important considerations:

MARY HASSON: When the state in the form of the teacher in a public school classroom is representing something, it carries a lot more weight the younger the child is. … The teacher in the classroom, and this is the voice of authority. And then you're setting up this conflict between what they're learning at home. … I was surprised there wasn't a little bit more emphasis on that.

The second consideration: the lack of consensus on gender ideology … the notion that there’s more than two sexes, that boys can become girls—

HASSON: There is huge disagreement even just from people who look at this from a scientific perspective and say, “This isn’t accurate.” …. And that was another element I was a little bit disappointed didn’t come up. … Over the past few years … we've seen a whole lot of evidence coming out and people understanding that this is not what it purports to be. This is a belief system that's not based on science.

I also spoke with a number of authors of children’s books about this case. One was Rosemary Wells. She’s been in the industry since her first book in 1967. Wells describes herself as a dyed-in-the-wool liberal.

ROSEMARY WELLS: From the North, from a blue state. … And I’m the grandmother of a trans child.

And yet … she sympathizes with the parents.

WELLS: I think they are worried about their children’s innocence. And I worry about that, too. … I would gladly, as a parent, go along with a school program that preserves children’s innocence over any sexual topic discussed too early.

She says it’s never too early to learn about the natural world.

WELLS: Kids need to learn about elephants and volcanos and stars. [laughs] They need to learn how to read for heaven’s sake. … They don’t need to learn about sexual identity in the primary grades. Wait until junior high, then the subject can be discussed. We need peace in the valley of our schools.

ROUGH: She says there are plenty of children's books out there that take a stand against bullying, teasing, and excluding … without the age-inappropriate sexual messaging.

Justice Brett Kavanaugh grew up in Montgomery County. He said he’s “mystified” about what’s happened, especially given that Maryland was founded as a safe haven for Catholics escaping religious persecution in England. He gave the school board attorney a chance to address that. Listen to Justice Kavanaugh’s response.

SCHOENFELD: Montgomery County Public Schools are the most religiously diverse in the country. … Montgomery County did its best under these circumstances given their curricular goals.

KAVANAUGH: Thank you. It’s a tough case to argue. I appreciate it.

ROUGH: That’s how you show civility and respect to someone you disagree with. And that’s this week’s Legal Docket.

EICHER: One more note before we go …In addition to hearing this case, the court issued a 5 to 4 decision in an immigration case. When calculating the 60-day period for the voluntary departure of a non-citizen, weekends and holidays don’t count. Say the 60th day is a Saturday … and Monday is the Fourth of July … the deadline would extend to Tuesday, the next business day.

WORLD Radio transcripts are created on a rush deadline. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of WORLD Radio programming is the audio record.