California public schools are not going to stop indoctrinating kids with LGBTQ-related principles.

I n a landmark decision at the end of its latest term, the Supreme Court established in Mahmoud v. Taylor that parents have the right to receive notice for, and opt their children out of, public-school lessons that undermine their deeply held religious convictions regarding marriage and sexuality. The court came down firmly on the side of parents — not schools — as the primary guides of children’s moral education, forbidding schools from interfering with a child’s religious upbringing via mandatory instruction contrary to religious beliefs.

Yet California apparently missed the message. As the new school year approaches, recent communications from the California Department of Education indicate that the state isn’t requiring its public schools to change their woke-infused curricula. If leftist-controlled public-school districts persist in compulsory LGBTQ-related indoctrination, parents should sue — and the Department of Justice should take notice.

The court in Mahmoud examined Maryland public schools that refused to grant opt-outs to parents for lessons that taught students transgenderism and gay marriage are morally good. These norms violated the religious beliefs of many parents, who then sued to vindicate their rights to the free exercise of religion under the First Amendment. In the majority opinion, Justice Alito held that the lessons in question “pose ‘a very real threat of undermining’ the religious beliefs and practices that the parents wish to instill in their children.” Raising one’s children in a faith tradition is a core aspect of religious expression, and the court held that the Maryland schools were burdening the parents’ exercise of their constitutional rights.

Some of the disagreement with Alito’s opinion has focused on workability. In her dissent, Justice Sotomayor asked how public-school administrators are supposed to identify material that might be enough of a burden to religious expression to provide parents with the Mahmoud-mandated notice and opt-out opportunities.

The answer is in the majority opinion, where Alito repeatedly emphasized the normativity concept: Lessons that give children normative instruction in sexual and gender ethics contrary to their parents’ religious views substantially burden a parent’s exercise of religion. And, I contend, it isn’t particularly difficult to predict what kinds of lessons might upset religious parents. It doesn’t take a scholar of religion to guess that Evangelical, Catholic, Muslim, or Orthodox Jewish families probably don’t want their 8-year-olds to read I Am Jazz, I’m Not a Girl, She’s My Dad!, or any of the laundry list of pro-LGBTQ books that publishers are churning out in response to demand from leftist-run schools. 

There might be some difficult edge cases about instruction that mention same-sex marriage or concepts like “gender identity,” and whether or not those lessons stray into normative endorsement. There might be a discussion about what kinds of topics beyond LGBTQ-related issues might trigger a Mahmoud-style opt-out. One can envision left-leaning schools providing lessons about other controversial moral issues, like abortion, that could require a similar opt-out provision. Indeed, one needs to be willfully blind to not see the enormous number of situations that might warrant an opportunity for parents to opt out their child. 

Yet California has clearly chosen willful blindness as the state’s chief response to Mahmoud. In an August 6 letter to school districts, the California Department of Education sent “non-binding” guidance about how to implement the kinds of opt-outs required by Mahmoud v. Taylor. The state’s strategy seems to be to minimize the scope of Mahmoud as much as possible, pretend to be completely bewildered about when or how to give opt-outs, and then pass off responsibility to local districts who will ignore the ruling. 

The letter construes Mahmoud as being tied to specific facts and circumstances in the Maryland schools, which supposedly renders its application in California totally unpredictable. It is bewildered over “whether and how knowledge of religious impacts on students should be imputed to schools.” The letter pledges undying allegiance to the FAIR Education Act, a 2011 California law mandating LGBTQ “representation” throughout public-school curricula, declaring that “the Mahmoud ruling should not be interpreted to require or allow the erasure of any particular group from public school curricular content” (bold in the original). They pretend to be confused about what to do with students who do opt out — a silly excuse, given that school districts already manage children who opt out of sex-education modules.

In this sea of pretend uncertainty, California’s Department of Education never actually gives schools any concrete guidance for complying with Mahmoud, or for identifying the kinds of normative lessons that should or must receive notice and opt-out opportunities. It passes that buck entirely to local school districts.

This is likely the smartest option for California to duly prevent, or at least forestall, any effective implementation of Mahmoud. They know that California’s radical, union-dominated school districts — including some of the biggest school districts in America, like Los Angeles Unified with over 600,000 students — will simply ignore the decision, and will fight rigorously to keep indoctrinating kids with a pro-LGBTQ ideology against parents’ wishes.

An LA Unified webpage on “SOGIE (Sexual Orientation, Gender Identity, and Gender Expression)” demonstrates its undying commitment to the full range of LGBTQ-related causes, and to a normative view of transgenderism and same-sex marriage as unqualified goods, with no mention of Mahmoud or opt-outs and more affirmations of the FAIR Education Act. Other large school districts, like San Francisco Unified, are similarly committed to the LGBTQ activism.

The Mahmoud decision relies on a factual analysis of lessons provided to children, and whether they contain normative moral messaging that undermines parents’ religious views. As the Maryland schools in Mahmoud did, I predict that liberal educators will try to characterize any LGBTQ lessons as merely “providing representation” or “promoting tolerance,” no matter how normative. Justice Sotomayor completely bought into this characterization of the lessons in dispute in Mahmoud. With that strategy, schools will effectively dare parents to file lawsuit after lawsuit over every district’s or school’s curriculum choice.

It is not difficult for the state to find examples of the kinds of lessons that would require a Mahmoud opt-out. In California’s current history and social science framework for public schools, the state specifically recommended lessons for second graders using In Our Mothers’ House by Patricia Polacco. The book’s description on Amazon reads:

Marmee, Meema, and the kids are just like any other family on the block. In their cozy home, they cook dinner together, they laugh together, they dance and play together. But one family doesn’t accept them. Maybe because they think they are different: How can a family have two moms and no dad? But Marmee and Meema’s house is full of love. And they teach their children that different doesn’t mean wrong. No matter how many moms or dads they have, they are everything a family is meant to be.

One of the paradigmatic books California specifically recommends for second graders contains the exact kind of normative instruction Mahmoud identified as requiring notice and an opt-out. The book clearly teaches that gay-wedded families are a normative good, that they are “everything a family is meant to be,” and that the “one family” who “doesn’t accept them” is bigoted. One would struggle to find a clearer example of normative instruction that undermines traditional religious beliefs. 

Mahmoud was a massive vindication for Christian and other religious parents trying to navigate public primary and secondary education. The left flies into an establishment clause panic over any ethical concept hinting at Christianity anywhere near a public-school classroom, arguing that instruction must be totally secular. However, a libertine worldview contrary to Christianity is given a compulsory pride of place in states like California, forcing religious families into a difficult position: swallow the indoctrination in public schools, or resort to homeschooling, or hemorrhage money on ludicrously expensive private schools (while still paying taxes for the public schools). Justice Alito talked at length about this unfairness for religious parents, and Mahmoud was a step in the right direction to vindicate their right to raise their children in their faith while attending public schools.

But clearly, California wants to keep enforcing its belief system, overriding parents, and forcing them into a horrible ethical dilemma for their children’s upbringing, despite Mahmoud. It would not be surprising if public schools in other deep-blue states follow California’s lead. If this obtuse non-compliance spreads, then Harmeet Dhillon and the Department of Justice’s Civil Rights Division should step in. No doubt Dhillon, whose legal career has been spent vindicating the civil rights of conservatives in California, will take a sharp interest in public schools trampling on constitutional rights.