On April 22, the Supreme Court heard oral arguments in Mahmoud v. Taylor, a case about parental rights and LGBTQIA+ books that could have long-reaching ramifications for education, access to diverse books, and children’s publishing. A ruling is expected this  month.

The case

In 2022, Montgomery County (MD) Public Schools added inclusive picture books to its elementary school language arts curriculum.

The nine books noted in the briefs to the Court are Born Ready: The True Story of a Boy Named Penelope by Jodie Patterson; Intersection Allies: We Make Room for All by Chelsea Johnson, LaToya Council, and Carolyn Choi, illustrated by Ashley Seil Smith; Jacob’s Room to Choose by Sarah Hoffman and Ian Hoffman; Love, Violet by Charlotte Sullivan Wild; My Rainbow by Trinity Neal and Deshanna Neal; Pride Puppy by Robin Stevenson; Prince & Knight by Daniel Haack; Uncle Bobby’s Wedding by Sarah S. Brannen; and What Are Your Words? by Katherine Locke.

The district allowed parents to opt out of instruction with the books, but when it became clear that the policy created too much of a burden for teachers, as well as resulted in high absenteeism and the possible stigmatization of LGBTQIA+ kids and families, the district removed the opt-out option.

Three couples sued the district, saying the inability for them to opt out was unconstitutional that interfered with their free exercise of religion and free speech. The parents, who are Muslim, Roman Catholic, and Ukrainian Orthodox, asked for a preliminary injunction, requiring the district to notify them when the books would be used in the classroom while the case was litigated. It was declined.

The presiding Federal Court of Appeals judge noted there was no “evidentiary link showing that the Storybooks are being implemented in a way that directly or indirectly coerces the Parents or their children to believe or act contrary to their religious faith.”

Despite this, the Supreme Court agreed to hear the plaintiffs’ appeal before the case had gone through the lower courts, and the way the books are being used has yet to be established in the case.

Possible ramifications

SLJ spoke with Janel George, associate professor of law at Georgetown University Law School and the director of the Racial Equity in Education Law and Policy Clinic, about the possible ramifications of a ruling in favor of the parents in this case.

“Some people may think this is really innocuous on its face. It’s not,” George says. “This is about how we lay the groundwork to dictate curriculum, to get around First Amendment academic freedom in the higher education context, to undermine access to education that includes diverse viewpoints. This is part of the larger attacks on education, and if it is successful, it will not stop here.”

The Democratic Justices shared the concerns about where this could lead during oral arguments. Could parents object to being taught by a teacher with a photo of their same-sex marriage on their desk? Would they want to opt out of other lessons in other subjects that they say runs counter to their religious beliefs?

Justice Elena Kagan expressed concern that the next step is parents not being satisfied with the opt out and instead deciding it’s unfair for their children to have to leave the classroom and objecting to the materials themselves. That would go beyond LGBTQIA+ picture books and include topics such as evolution in biology classes. The plaintiffs’ attorney said that opt outs were rare in those situations and would be limited even if the Court ruled in favor of the parents.

But the lawyer for the district told Kagan, “If you constitutionalize it, people will invoke it.”

George is also concerned with what’s next if the Court rules for the parents.

“I worry that even Brown vs. Board of Education will effectively be overturned,” says George. “It won’t be an explicit overturning of Brown, but it will be the gradual erosion of Brown, and that’s what we’re seeing here. We’re seeing a gradual erosion of freedom in the classroom, recognition of the importance of trusting educators to shape curriculum, the appreciation of education as an emancipatory tool, to expose students to different viewpoints, to different experiences, to different lives.”

This case, she says, is not as much about parents having the right to opt-out of a particular lesson as it is a strategic piece of a bigger puzzle with a definite political agenda.

“It’s really important to not look at it in isolation,” George says. “I believe Mahmoud is part of the larger project to tell a singular story about America and to indoctrinate students into a curriculum that denies difference and that obscures the contributions of people from diverse backgrounds from classrooms. I also think it’s part of a larger project on attacks on educators.”

There are those who predict a “narrow” ruling from the Court, which could be perceived as a victory for intellectual freedom and access to a broad variety of materials, but George cautions that even a narrow ruling could be misinterpreted and applied broadly. In 2023, when the Supreme Court struck down race-based affirmative action in admissions decisions in Students for Fair Admissions, Inc. (SFFA) v. President & Fellows of Harvard College and SFFA v. University of North Carolina, it was a narrow ruling, she says, but it’s being interpreted broadly by the current administration, including in recent correspondence with institutions of higher learning across the country. She expects the same would happen here.

“It will likely be—and I am predicting here—it will likely be interpreted very broadly,” George says. “There are a range of organizations, including the National Education Association, on behalf of educators who have filed different amicus briefs in the case, because this will reverberate, for curricular content, for lesson planning, for what schools can teach.”

Authors and free speech advocates worry that a ruling in favor of the parents will lead schools to choose not to have these books. In turn, if schools aren’t buying them, how long before publishers stop publishing them?

“I’m just so angry about this case and the expected outcome given the makeup of SCOTUS,” says author Ellen Oh. “It makes it even more imperative to rally around the LGBTQ+ community. [Author] Phil Bildner and I have been doing virtual and in-person talks with communities [that] are rallying against book bans that are targeting BIPOC and LGBTQ+ books. It is our mission to bring support and action items to any community who needs and wants our help. Now is the time for us to be louder than ever.”

Oral arguments

Oral arguments can offer hints as to which way the Court may be leaning based on the questions they ask. As a Rally for Inclusive Education went on outside the Supreme Court, the nine justices heard arguments from lawyers for the parents and the district. Based on the Justices’ response, legal experts expect a decision in favor of the parents, led by the conservative majority on the bench, which questioned the burden of an opt out and also the nature of the lessons taught with the books.

Meanwhile, the liberal justices questioned the idea that exposure to the books coerced the parents to violate their religion, Justice Sonia Sotomayor, in questioning the plaintiffs’ lawyer, asked, “Haven’t we made very clear that the mere exposure to things that you object to is not coercion?”

But Chief Justice John Roberts did not agree, noting that even if the county policy does not require students to agree with what is in the books, that may be too complicated a concept for young children to understand.

During the arguments, the justices addressed two books named in the suit, Pride Puppy and Uncle Bobby’s Wedding. Justices Neil Gorsuch and Samuel Alito misrepresented the content of the titles and refused to be swayed by the district’s counsel’s correction.

Pride Puppy, said Gorsuch—who insisted he had read it—has children search for bondage and sex workers, and Alito said that Uncle Bobby’s Wedding is about a mother teaching her daughter that is is OK for two men to get married.

Neither of those claims is true. Gorsuch backed his argument by saying Pride Puppy, the ABC seek-and-find book, asks children to look for a woman in a leather jacket and Marsha P. Johnson. There is, indeed, a woman in a leather jacket—that has nothing to do with bondage. There is also a picture of Marsha P. Johnson on a sign being held at the parade. Johnson was a gay activist who is believed to have done sex work at some points during her life, but nowhere in the book is that mentioned. She is known for her advocacy and as one of the key figures in the Stonewall uprising. The only mention of her is in the back of the book offering extra items for readers to search for on the pages.

As for Alito’s claims, the young girl in Uncle Bobby’s Wedding is not opposed to same-sex marriage, she is worried that her favorite uncle will not have time for her anymore.