Parents Get Some Help from the Supreme Court

The Supreme Court recently issued two landmark opinions that lighten parents’ load in their efforts to maintain their children’s innocence: Mahmoud v. Taylor and Free Speech Coalition v. Paxton. Both decisions support parents’ ability to determine at what age and with what content their children will be exposed to certain materials about human sexuality.

Currently—whether from motivations of profit, the desire to impose a set of ideological beliefs, or even due to some flawed conception of justice—some corporations and the State are exposing even very young children to sexual content. Online, this includes pornography. In public schools, it increasingly includes materials promoting same-sex relations and transgender identities. Pornography distributors have taken refuge in their interpretations of the First Amendment free speech guarantee. They argue that limitations respecting minors’ access to pornography would impair adults’ rights of access. And school boards have claimed that they are merely “exposing” children to information that would promote inclusion of the various children and families in their district, as well as hedge against bullying. 

Some state lawmakers and coalitions of parents have started to fight back and seek legal redress, especially because in the case of school curricula, parents ordinarily have lost before school boards and lower courts. While states allowed them to opt-out of sex education courses, they were forbidden from obtaining the same rights respecting sexual materials woven through courses such as Reading and English. 

In Texas and elsewhere, concerned citizens have recently influenced state legislatures to enact laws requiring online pornography distributors to verify that their consumers are adults, in efforts supported by my friends at IFS. This is common practice in bricks-and-mortar outlets selling pornography. And concerning exposure to materials on sexual orientation and gender identity, a diverse group of religious parents in Maryland took their case all the way to the U.S. Supreme Court after unsuccessfully demanding that a school district provide them the same rights respecting sexual reading materials as they have respecting sex education courses. The Supreme Court has now given the green light to both efforts in the Paxton and Mahmoud cases, respectively. 

Looking first at Paxton, the Supreme Court held 6 to 3 that Texas could require web sites featuring sexually explicit content to demand proof of age before permitting access. Parties representing the pornography industry complained that the entire burden of preventing children access to harmful materials should be placed on parents’ shoulders, while the industry remained free of any restrictions. But in a long and complex discussion of First Amendment free speech principles, the Paxton Court held that the availability of parental oversight as an additional means of shielding children did not forbid the state from demanding age verification, even if this posed some incidental burden on adults’ constitutionally protected access to the same materials. Now, additional states may feel free to pass similar laws. 

A second decision, Mahmoud, also boosts parents’ ability to protect their children. The case involved a set of books adopted by the Montgomery County, Maryland school board, for use from Kindergarten through fifth grade. These books introduced children as young as age four to vocabulary and images from a gay pride parade, a same-sex relationship, a gay wedding celebration, and a child identifying as the opposite sex. All the materials celebrated same-sex relations and children’s subjective determination of their own sex. Parents who objected to these materials, often on religious grounds, were strictly denied the opportunity to opt their children out of exposure. And accompanying guides specifically instructed teachers to direct perplexed children toward accepting all of the behaviors and conclusions portrayed in the books, and to admonish reluctant children as mean, narrow-minded, and hurtful.  A diverse array of religious parents sued, claiming two federal constitutional rights: the free exercise of religion, and parents’ rights under the Fourteenth Amendment’s “due process” clause to the care, custody and control of their minor children. Parents lost at the district and appeals court levels on the grounds that mere “exposure” to these materials did not burden their rights at all because the children were not compelled to disaffirm or disobey their religious beliefs. 

The Supreme Court ruled in Mahmoud that parents’ rights are burdened even if children are not compelled to disaffirm their religion, but only more subtly coerced to reject it.

But the Supreme Court, in a 6 to 3 vote, found for the parents due to their combined constitutional rights. In an opinion authored by Justice Samuel Alito for the majority, the Court announced a rule that states may not substantially interfere with parent’s direction of their children’s religious upbringing. The decision firmly puts to rest the notion that what the schools called mere “exposure” was harmless. Instead, it held that parents’ rights are burdened even if children are not compelled to disaffirm their religion, but only more subtly coerced to reject it. In this case, a constellation of circumstances added up to coercion in the Court’s view: the children’s age; the power of teachers as role-models; the schools’ treating contested matters as settled; the demonstrated hostility to religious viewpoints (both religious parents and children were ridiculed and insulted at school board meetings, and reluctant students were admonished in class); and the normative quality of the books as well as the teachers’ guides.  

There are three additional legally significant take-aways from Mahmoud. 

• First, the Court slapped down rather sharply the county’s argument that public school curricula is an “internal matter,” untouchable by parental objections. It declared rather that public education involves direct, coercive interactions between the state and its young residents such that parents’ authority over their minor children has an important role to play. 
• Second, Mahmoud squarely rested its holding on the Court’s 1972 Wisconsin v. Yoder opinion. There, Amish families were permitted to remove their children from the school system after eighth grade and educate them instead in preparation for adult life in the Amish community. Since Yoder, almost every lower court has refused to apply the case even to parents objecting to sexually explicit grade-school performances.  They reasoned that parents’ religious freedom respecting state educational requirements only applies to communities like the Amish living separately from mainstream society. All other families must consume whatever a school board choose to serve up. Mahmoud rejected this reading of Yoder, finding instead that some school curricula can undermine the religious convictions of members of mainstream society who possess constitutional rights to say “no.” 
• Third and finally, Mahmoud did not decide the rights of all parents respecting all curricula, but only religious parents regarding curricula undermining their transmission of faith. Furthermore, the Court was careful to note that the complaining parents did not seek to “micromanage” the school’s curriculum but wished only for notice and an opportunity to opt out. The articulation of any additional parental constitutional rights respecting their children’s education will have to await later cases. 

In current educational and online environments preoccupied with sexual content and disinterested in children’s innocence, even vigilant parents have their work cut out for them. Paxton allows states to support parents’ efforts to protect their children and preserve their values, and Mahmoud forbids public schools from undermining them. 

Helen M. Alvaré is the Robert A. Levy Chair and Professor of Law at the Antonin Scalia Law School, George Mason University, in Arlington Virginia.