Last month, on the final dramatic day of its term, the Supreme Court in the case of Mahmoud v. Taylor affirmed the right of parents in Montgomery County, Md., to opt their children out of public school classes reading “LGBTQ+-inclusive” texts, on grounds that preventing such opt-outs unconstitutionally burdens parents’ religious freedom. Although religious liberty has been around since the Founding, its exercise in schools via opt-outs has become newly urgent with the spread of woke curricula.
Potentially, however, the implications of Mahmoud go well beyond opt outs for “LGBTQ+-inclusive” texts. That’s because the right to opt out on religious grounds necessarily includes the right to receive advance notice of classroom learning materials and activities. This means Mahmoud just might break the political logjam that has been holding up a critically important reform — the creation of a thorough and efficient web-based approach to letting parents know exactly what their children are learning in school.
The fact that parents don’t already know what their children are being taught is a scandal. While most school districts do have some mechanism for letting parents know the curriculum, that mechanism is usually poorly updated, extremely limited, and/or accessible only in hard copy during working hours. That is more than most parents can manage to access.
Quite possibly, as a result of Mahmoud, the new legal and financial risks to schools of keeping parents in the dark will usher in an age of curriculum transparency. Districts will not want to be sued for keeping parents too uninformed to exercise their opt-out rights. And this would mean a great deal more than a few extra opt-outs. True curriculum transparency would restore the ability of parents — and voters — to democratically control what schools actually teach. In the absence of such transparency, the classroom is a black box. Administrators and teachers can effectively pull the wool over parents’ eyes by forcing on students, with no accountability, woke lessons on race, sexuality, and American history.
Mahmoud on its own might be enough to bring about a change. If enough parents demand their rights to notice and opt-outs, schools may be forced to proactively increase curriculum transparency, just so they don’t get sued. Yet it’s also possible that busy parents will fail to demand their rights, and that continued school silence on curriculum will prevent parents from even knowing what texts their children are being taught. How can you ask for an opt-out — much less demand a curriculum change or information about how to vote in the next school board election — if you don’t know what’s actually being taught in your school?
The best way to guarantee that parents can exercise their right to opt-outs under Mahmoud — not to mention their right to take charge of their own schools — would be for states to mandate curriculum transparency by law.
Fortunately, model state-level curriculum transparency legislation already exists. It’s published by Arizona’s Goldwater Institute, as I announced in National Review Online in 2022. (I’m a co-author of the model.) The Arizona legislature came within a single vote of passing a law based on this model in 2022. (The sole Republican to vote against the bill lost his primary shortly thereafter.) With the changed composition of the state legislature, that 2022 bill would likely be law right now had Arizona not elected a Democratic governor in 2024. In other states, unfortunately, teachers unions have successfully blocked similar transparency laws. But the Mahmoud decision just might alter the political balance of forces.
Because of Mahmoud, religious parents, aware of their newly affirmed right to opt out, and legitimately doubtful that schools will fully inform them of the lessons to which their children are exposed, may begin to demand proper curriculum transparency laws from their state legislators. And because it brings the importance of parental notice into sharp focus, Mahmoud may jump-start a national discussion on the need for curriculum transparency.
Looking at Mahmoud, in fact, we can see how easily the parents in question might have been deprived of the knowledge they needed to request an opt-out. The Montgomery County Public Schools (MCPS) introduced its new “LGBTQ+-inclusive” texts with some fanfare, after a post–George Floyd “Antiracist System Audit” in 2021. Parents were thus able to request notice and opt-outs, and a great many did. At this point, MCPS granted those requests.
After about a year, however, the district abruptly changed its policy. All of a sudden, opt-outs were forbidden. And crucially, parents were no longer notified when “LGBTQ+-inclusive” texts would be used in a given class. In this case, fortunately, the introduction of the controversial texts a year before was well known, so parents were able to sue for restoration of their notice and opt-out rights. Yet in many other instances, individual teachers or districts are able to slip such texts into their curriculum with no publicity. Without a system of curricular notice and transparency, parents cannot know whether there is anything to opt out of to begin with.
In Montgomery County, parents were informed enough and committed enough to file a lawsuit. And that lawsuit brought further information. It was only through the legal discovery process that the plaintiffs were able to obtain guidance that the school district had provided for teachers on how to present the “LGBTQ+-inclusive” texts, as well as internal district documents on the basis for choosing the texts themselves. Those documents made it clear that the storybooks were being offered with controversial goals in mind.
Rather than having chosen the books at issue on grounds of, for example, health or information about reproduction, the district’s internal documents explained that the books were chosen based on whether they “reinforced or disrupted” “heteronormativity,” “cisnormativity,” and “power hierarchies that uphold the dominant culture.” Without a lawsuit, parents would never have been alerted to this. Yet much of this sort of material (teacher training material, for example) would be regularly disclosed were a state law inspired by the Goldwater Model Academic Transparency Act in place. By a fortunate confluence of circumstances, and by their willingness to defend their own rights, the parents in Mahmoud obtained the knowledge they needed to act and win. In a great many other cases, however, parents are effectively deprived of their rights in the absence of a regular system of curricular notice.
It’s true that, short of a state-level law mandating curriculum transparency, there is much that parents can do to exercise their rights under Mahmoud. The very helpful group Defending Education (formerly Parents Defending Education) has posted a sample letter that parents can send to their districts in exercise of their notice and opt-out rights under Mahmoud. As Defending Education says, Mahmoud “should act as a directive to every American school district: notify parents of controversial material, and provide them the opportunity to opt their children out.” Yet, as Defending Education’s advice implies, there is a real danger that school districts will not, in fact, carry out their responsibilities under Mahmoud. That is why state-level curriculum transparency legislation is needed.
By pointing to Mahmoud to jump-start a movement for state-level curriculum transparency legislation, I may seem to be vindicating Justice Sonia Sotomayor’s dissent. Drawing on amici briefs filed by the School Superintendents Association and the National Education Association, Sotomayor warns of chaos in schools as a result of “impossible administrative burdens” imposed by Justice Samuel Alito’s majority opinion. With hundreds of distinct religious groups now in the United States, says Sotomayor, the majority opinion in Mahmoud will force teachers “to become experts in a wide range of religious doctrines in order to predict, in advance, whether a parent may object to a particular text, lesson plan, or school activity as contrary to their religious beliefs.”
Sotomayor contends that this burdensome new regime will prompt schools to simply eliminate controversial texts, in effect handing a minority of parents and the courts veto power over curriculum decisions traditionally made by democratically elected legislators and school board officials. Thus does Sotomayor chastise the conservative majority for allegedly betraying its own federalist principles.
Indeed, the amici brief filed by the School Superintendents Association argues that the impossibility of predicting possible religious objections, along with the multiplicity of religious views, will force schools to provide “constitutional notice for all texts and discussion topics for every subject area.” In other words, the School Superintendents Association effectively predicts that the majority opinion in Mahmoud will force the adoption of something very similar to the Goldwater Institute’s Model Curriculum Transparency Act.
There are several reasons we should not be put off by these warnings. In the first place, while curriculum transparency strikes today’s education establishment as some kind of nightmare, to conservatives and champions of parents’ rights, it is greatly to be desired. Quite simply, parents and the public need to know what schools are teaching if they are to exercise democratic control over their schools.
Beyond that, however, the thorough and regularized web-based transparency approach advanced by the Goldwater model would alleviate, rather than exacerbate, the problems gestured at by Sotomayor. If schools habitually disclose the curriculum in its entirety, then teachers will not have to become experts in religious doctrine. Instead of doing what Montgomery County initially did — send letters to parents warning them of potentially controversial material — the burden would fall on parents to follow the transparency website and be alert to concerning material. Nor would this be an unworkable burden on parents, since church and community groups can easily designate a few representatives to keep an eye on coming assignments. Instead of giving a minority of parents de facto veto power over the curriculum, a fully transparent system would make opt-outs by minorities more workable and efficient. The simple blanket uploading of information to a website would make for a regular and time-saving process — no religious study by teachers required.
Furthermore, especially in the growing number of states — like Arizona, where parents can choose between different types of charter schools, or like California, where parents can choose from several different public schools — publicly posting the curriculum would reduce the mismatch between parents and schools. Choosing compatible schools, in turn, would reduce the number of opt-out requests, an advantage to schools, parents, and students alike. And once government-run schools start posting their curriculum, private schools would have a competitive motive to do the same.
While opt-outs by minority groups would be quite manageable under a fully transparent system, parents who disapprove of woke assignments would not, in fact, always be a minority. This is what the education establishment is really afraid of. If the curriculum is widely known — right down to the individual teacher and lesson plan — the black box of the classroom would at last be illuminated. Neither district administrators nor individual teachers would be able to force their ideologies on a captive audience of minors in defiance of public opinion. Instead of counteracting federalism and local control, transparency would enable it.
In light of Mahmoud, the Goldwater Institute’s Model Curriculum Transparency Act has made some changes (here’s a link to the updated model). The original model called for curriculum notifications to be made shortly after lessons were taught in class. When the Arizona bill inspired by that model was debated, however, legislators added provisions requiring advance notice for more controversial topics. Now that list of controversial topics has been slightly expanded to cover the core concerns of Mahmoud. The revised model calls for materials on topics such as DEI, race, ethnicity, gender identity, sex, and LGBTQ+ to be posted at least two weeks before classroom use, to allow for opt-outs and parental feedback.
This list of controversial topics includes, but also goes beyond, issues that might lead to opt-outs on specifically religious grounds. Again, the goal here is to accommodate Mahmoud but also to go beyond it in the application of transparency to all parts of the curriculum, whether potential objections are religious or secular. Of course, if experience shows that other curricular topics tend to bring requests for opt-outs under Mahmoud on religious grounds, those topics could be shifted into the category of lessons given only after advance notice.
In sum, Mahmoud v. Taylor can and should provide a major boost to the effort to uncover what our children are taught in school. In the age of the web and big data, this can be done with thoroughness and efficiency. Rather than an administrative nightmare, true transparency is a parent’s dream. Yes, it will deprive administrators and teachers of their ability to indoctrinate their youthful captive audience against the wishes of voters. That is as it should be. And in the many states now adopting school choice, curricular transparency would provide an informed basis on which that choice can be made. The Court’s affirmation of religious liberty in an age dominated by educators’ ideological arrogance and stealth may bring a new transparency to America’s schools. That would truly transform them.