Primary Source: Legislative and Litigation Updates 7.1.25

Mahmoud v. Taylor, compulsory education, radical indoctrination by teachers' unions and the need for school choice.

We’ve had another few weeks loaded with incredible Supreme Court decisions and action from the federal government that have critical implications for California. Today I’m discussing Mahmoud v. Taylor.

Mahmoud v. Taylor

Issue: Prohibiting notice and opt out to parents for materials that convey a normative message on subjects like sexuality and gender ideology violates their First Amendment rights.

• There is so much good stuff in this decision. I wrote a thread here with the highlights.

• Teachers unions have injected radical activism into California public schools. (See e.g., here and here.)

• Activists fight parents at every turn, labeling them bigots and transphobes for the crime of speaking up against indoctrination of their children into gender ideology and wanting to be informed when it happens. It happened to me.

• The Mahmoud decision does a number of things:

  (1) it shows skeptics that schools are in fact pushing gender ideology on children,

  (2) it explains the difference between mere exposure (OK) and forcing children to adopt a particular viewpoint on an issue (not OK),

  (3) it emphasizes the fundamental right of parents to direct the care and upbringing of their children, including their religious development,

  (4) it recognizes the coercive nature of classroom instruction, especially compulsory public education, and

  (5) calls out woke activists for stigmatizing and isolating religious students in the name of “inclusion.”

• The case focuses on normative messages. “Like many books targeted at young children, the books are unmistakably normative. They are clearly designed to present certain values and beliefs as things to be celebrated and certain contrary values and beliefs as things to be rejected.”

• For example, the Court said this about Born Ready: “To young children, the moral implication of the story is that it is seriously harmful to deny a gender transition and that transitioning is a highly positive experience. The book goes so far as to present a contrary view as something to be reprimanded. When the main character’s brother says “‘You can’t become a boy. You have to be born one,’” his mother corrects him by saying: “‘Not everything needs to make sense. This is about love.’” Id., at 465a (emphasis in original). The upshot is that it is hurtful, perhaps even hateful, to hold the view that gender is inextricably bound with biological sex.”

• What does Mahmoud mean in practice?

• The explicit prohibition of opt outs from CSBA’s model Administrative Regulation 6142.8 is unconstitutional and must be stricken:

  • “However, pursuant to Education Code 51932, such parental request shall not excuse a student from instruction, materials, presentations, or programming that discuss gender, gender identity, gender expression, sexual orientation, discrimination, harassment, bullying, intimidation, relationships, or family and do not discuss human reproductive organs and their functions. (Education Code 51938).”

• Activists will argue it’s impossible to provide notice and opt out options because they've woven gender ideology and sexuality into daily curriculum. However, SCOTUS explicitly states: "[i]f the Board can structure the “Family Life and Human Sexuality” curriculum to more easily accommodate opt outs, it could structure instruction concerning the “LGBTQ+-inclusive” storybooks similarly. The Board cannot escape its obligation to honor parents’ free exercise rights by deliberately designing its curriculum to make parental opt outs more cumbersome." (Slip Op. P. 39).

• At the very least, all parents must have access to curriculum and materials being taught to their children

• If a teacher is going to supplement that curriculum with storybooks containing normative messages regarding gender ideology or sexuality, the teacher must provide parents with notice and an opportunity to opt out.

• How will teachers know when something they’re going to teach might conflict with a child’s religious upbringing? That may be a difficult question in some cases. Accordingly, the best practice is to be completely transparent with parents and provide notice of and access to all curriculum materials, supplemental materials, and lessons that will be taught (which is currently required by law), and to respect parental opt out when requested.

• Remember in California we also have Hardwick v. Fruitridge, where the California Supreme Court said children of persons conscientiously opposed to certain instruction, from religious convictions or otherwise, cannot be compelled, on pain of expulsion from school and of the denial of the right to attend any public school of the county, to participate in such instruction. Accordingly, the ability to be notified and opt out from instruction in a compulsory school setting is not restricted to those with religious convictions.

• Districts are going to start getting hit with False Claims Act lawsuits for accepting federal funds while violating federal laws, and to prevent incurring liability, districts need to follow federal laws or stop accepting federal funds.