• 2 old cases are getting new attention because of a dispute between religious parents in Maryland and their local school district.
• When the state has directed schools to protect parents’ religious freedom and the schools fail to do so, courts should act.
• State policymakers should continue to act to protect and bolster parental rights with prudent state policy as well.

​A recent news analysis pointed to a pair of U.S. Supreme Court cases from the 1920s and suggested they might have some contemporary relevance to discussions about parents and schools.

The occasion for this speculation is a case just accepted by the U.S. Supreme Court called Mahmoud v. Taylor, which involves the intersection of religious freedom and the involvement of parents in their children’s education.

So, what happened in the 1920s?

In the wake of World War I, in an atmosphere of suspicion of immigrant communities (particularly German-speaking), the state of Nebraska enacted a law forbidding teaching in the German language in public schools. A teacher who taught in German at the request of parents was prosecuted and found guilty of violating this law. He appealed the conviction to the U.S. Supreme Court. Its 1923 decision in Meyer v. Nebraska recognized that the state had a valid interest in encouraging facility in English but said that “this cannot be coerced by methods which conflict with the Constitution – a desirable end cannot be promoted by prohibited means.” The court concluded that the state lacked authority to remove the option of foreign language teaching from parents.

A few years later, the court weighed in on a law that directly prohibited parents from sending their children to private schools. Motivated by anti-Catholic feeling and endorsed by the Ku Klux Klan, the law was challenged by a parochial school and a private military academy. In Pierce v. Society of Sisters, the Supreme Court struck down the law, determining that it “unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children.” The state lacked authority “to standardize its children by forcing them to accept instruction from public teachers only.”

These old cases are getting new attention because of a dispute between religious parents in Montgomery County, Maryland, and their local school district. The district decided in 2022 to add books to address sensitive topics related to sexuality in pre-kindergarten to eighth-grade classrooms. The district initially agreed to give parents – some of whom had religious objections to the teaching of these topics to their young children in ways that directly conflicted with the deeply held beliefs of their families – notice of this teaching and the ability to opt their children out. This is what Maryland law provides.

The district, however, announced in 2023 that it would not provide this notice, so parents sued, eventually asking the Supreme Court to take their case, which the court has agreed to do this term.

Of course, as with other religious freedom claims, it would be ideal for state legislatures to act affirmatively to protect the ability of parents to share their beliefs with their children and prevent public schools from using class time to undermine those teachings.

When, as here, the state has directed schools to protect parents’ religious freedom and the schools fail to do so, courts should act.

In the Pierce case, the court was clear: “The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” That reality should guide this court in responding to the plight of the religious parents in this case.

What does this mean for Utah parents and schools?

In Utah, state lawmakers have taken significant steps to protect parental rights in schools. For years now, parents have had the right to opt their children out of state assessments. Parents must choose to affirmatively opt in their student, through written consent, to the school’s sex education (a stronger and rarer policy approach for parental rights than an opt out).

When it comes to what students are learning, school boards are required to let parents access district learning materials. When districts are selecting and approving district learning materials, parents must be involved in the process in specific ways.

In 2023, the Utah Legislature created a law which provides that parents cannot be prevented from accessing their student’s school records, including information about a student’s gender identity. A student’s gender identity cannot be changed on student records without a parent’s consent.

In that same year, the Legislature created protections in school that respect the religious beliefs of students and their parents. For instance, parents have the right to waive their student’s participation in any aspect of school if it violates the religious rights of the student or the student’s parents. When a student chooses to refrain from participating in an aspect of school for these same reasons, parents must be notified. The law also protects students in schools in various ways: Schools cannot engage a student in a practice that violates the religious beliefs of the student or their parents; schools cannot discriminate against a student for their religious belief or that of their parents, nor require or incentivize them to affirm or deny the religious belief of the student or their parent.

It’s clear that parental rights have often been at the forefront of education policy debates in Utah. Yet, with parental rights being potentially affected by the court’s involvement in this case, state policymakers could have the space to do more to boost parental rights by helping parents understand or constructively exercise their rights in schools.

For instance, Utah law already requires that local school boards make “curriculum readily accessible and available for a parent to view,” annually notify them how to access it, and put information on the district website on how to access it. Heightening this policy could look like offering parents additional information about what’s actually being taught in individual classrooms by rewarding teachers who offer a more robust level of openness to parents about their curriculum.

Likewise, the Utah State Board of Education employs a Parent Liaison and Engagement Education Specialist, according to statute, which aims to help parents and schools navigate parents’ rights and questions. Bolstering this office with more, easy-to-use information on its website for parents or having a similar office in districts could help expand the impact of this office for parents as well.

The court should strengthen the rights of parents and religious freedom in this case. In addition, state policymakers should continue to act to protect and bolster parental rights with prudent state policy as well.