What Now? Recent SCOTUS Decision Leaves School Divisions With More Questions Than Answers

The U.S. Supreme Court recently ruled that a school division’s use of LGBTQ+-inclusive storybooks without allowing parental opt-outs unconstitutionally burdened religious freedom. This decision raises significant questions for school divisions nationwide, potentially opening the door to increased litigation and forcing districts to reconsider how they balance inclusive curricula with religious accommodations.

Background of the Case

In October 2022, the Board of Education of Montgomery County, Maryland (the Board) introduced five LGBTQ+-inclusive storybooks approved for students in kindergarten through fifth grade. The storybooks depict LGBTQ+ characters and storylines, and it was suggested by the Board that the books be incorporated into the curriculum the same way other books are used. For example, teachers could put them on a shelf for students to find on their own or use them as a read aloud. Teachers could not elect to not use the books.

The Board initially provided for notice and an opportunity to opt-out when the LGBTQ+-inclusive storybooks would be taught; however, by the end of the 2022-23 school year, the Board stopped the provision of notice and the opportunity to opt-out because “individual principals and teachers could not accommodate the growing number of opt out requests without causing significant disruptions to the classroom environment,” and “permitting some students to exit the classroom while the storybooks were being taught would expose other students to social stigma and isolation.” 

Procedural History

Parents from a variety of faiths filed suit asserting, in relevant part, that the Board’s introduction of the LGBTQ+-inclusive storybooks, combined with the decision to withhold notice and opt outs, unconstitutionally burdened their religious exercise. The parents sought a preliminary injunction which would permit them to have their children excused from instruction related to the storybooks while the lawsuit proceeds. The U.S District Court of Maryland denied the parents’ motion for preliminary injunction and the Fourth Circuit U.S. Court of Appeals affirmed, holding that the parents “had failed to establish that the Board directly or indirectly pressured them or their children to abandon their religious beliefs or affirmatively act contrary to those beliefs.” 

The parents petitioned the U.S. Supreme Court for review on the question: Do public schools burden parents’ religious exercise when they compel elementary school children to participate in instruction on gender and sexuality against their parents’ religious convictions and without notice or opportunity to opt out?

Supreme Court Decision

On June 27, 2025, in a 6-3 decision, the U.S. Supreme Court held that the parents are entitled to a preliminary injunction because “the Board’s introduction of the LGBTQ+-inclusive storybooks, along with its decision to withhold opt outs, places an unconstitutional burden on the parents’ rights to the free exercise of their religion.” 

Writing for the majority, Justice Alito relied heavily on the Court’s decision in Wisconsin v. Yoder, 406 U.S. 205 (1972), where the Court held that the First and Fourteenth Amendments prevent a state from compelling Amish parents to cause their children, who have graduated from the eighth grade, to attend formal high school to age 16. In a departure from prior precedent, the majority determined that “when a burden [on religious exercise] imposed is of the same character as that imposed in Yoder, we need not ask whether the law at issue is neutral or generally applicable before proceeding to strict scrutiny.” The Court, quoting Yoder, found that “the Board’s policies, like the compulsory-attendance requirement in Yoder, substantially interfere with the religious development of the parents’ children.” See Yoder, 406 U.S. at 218 (“The conclusion is inescapable that secondary schooling, by exposing Amish children to worldly influences in terms of attitudes, goals, and values contrary to beliefs, and by substantially interfering with the religious development of the Amish child and his integration into the way of life of the Amish faith community at the crucial adolescent stage of development, contravenes the basic religious tenets and practice of the Amish faith, both as to the parent and the child.”).

What does this mean for School Divisions?

The dissenting Justices, in making the following assessment, predict that the ruling will have a chilling effect on school divisions:

Many school districts, and particularly the most resource strapped, cannot afford to engage in costly litigation over opt-out rights or to divert resources to tracking and managing student absences. Schools may instead censor their curricula, stripping material that risks generating religious objections. The Court's ruling, in effect, thus hands a subset of parents the right to veto curricular choices long left to locally elected school boards.

Will the dissenting Justices’ prediction come true? There is certainly potential for an uptick in litigation against school divisions initiated by parents who perceive particular School Board decisions as burdening their religious exercise. At this point however, it is unclear what the ultimate impact of this decision will be on school divisions

At this point, the ultimate impact of this decision on school divisions remains unclear, however school leaders would be well advised to give due consideration to religion-based opt-out requests from parents.

Sands Anderson’s School & Education attorneys are prepared to help you. Please contact Whitney Nelson-Crawford or another member of our General Education team with any questions you may have about this update.

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