Notice and Opt Out Required in Public School Instruction
Mahmoud v. Taylor: Prohibiting Opt Outs of “LGBTQ+-Inclusive” Materials Violates Parents’ First Amendment Rights
In Mahmoud v. Taylor, 606 U.S. ___ (2025), the United States Supreme Court found that a school district’s introduction of “LGBTQ+-inclusive” storybooks—combined with its decision to withhold notice to parents and to forbid opt outs—substantially interferes with the religious development of their children and imposes an unacceptable burden on religious exercise. In other words, a blanket prohibition against notice and opt outs for instruction and materials that convey a normative message on subjects like sexuality and gender ideology is unconstitutional.
In Mahmoud v. Taylor, the Board of Education of Montgomery County introduced a variety of “LGBTQ+- inclusive” storybooks into the elementary school curriculum. The books—and associated educational instructions provided to teachers—were designed to “disrupt” children’s thinking about sexuality and gender. The Board told parents it will not give them notice when the books are going to be used and that their children’s attendance during those periods is mandatory. A group of parents from diverse religious backgrounds sued to enjoin those policies, asserting the new curriculum, combined with the Board’s decision to deny opt outs, impermissibly burdens their religious exercise.
California parents are actively dealing with this exact situation. Districts that implemented California School Board Association (“CSBA”) revised sample Administrative Regulation (“AR”) 6142.8 explicitly prohibit notice and opt outs of gender and sexuality content. Even if they did not adopt this regulation, many districts are following guidance from CSBA, the ACLU, and the California Department of Education (“CDE”), and disallowing notice and opt outs of this curriculum even when explicitly asked by parents.
CSBA Sample AR 6142.8 is Unconstitutional
Under the section entitled “Students Excused from Health Instruction,” in Sample AR 6142.8, CSBA recently added:
“However, pursuant to Education Code section 51932, such parental request shall not excuse a student from instruction, materials, presentations, or programming that discuss gender, gender identity, gender expression, sexual orientation, discrimination, harassment, bullying, intimidation, relationships, or family and do not discuss human reproductive organs and their functions. (Education Code section 51938).”
CSBA took the position that parents cannot opt out of instruction, materials, presentations, or programming that discuss gender, gender identity, and gender expression under Education Code section 51932, even though the text of Education Code section 51932 does not prohibit such opt outs. Note: the ACLU and other activist organizations take the position that Education Code section 51932 actually does prohibit notice and opt outs. If their interpretation of state law is correct—which I contest—then state law is also unconstitutional.
Education Code section 51932 provides, in its entirety:
“(a) This chapter does not apply to description or illustration of human reproductive organs that may appear in a textbook, adopted pursuant to law, if the textbook does not include other elements of comprehensive sexual health education or HIV prevention education as defined in Section 51931.
(b) This chapter does not apply to instruction, materials, presentations, or programming that discuss gender, gender identity, gender expression, sexual orientation, discrimination, harassment, bullying, intimidation, relationships, or family and do not discuss human reproductive organs and their functions.” (Emphasis added.)
“This chapter” refers to Chapter 5.6 of Part 28, Division 4, Title 2 of the Education Code, which encompasses the entirety of the California Healthy Youth Act (“CHYA”), codified at Education Code sections 51930 – 51939.
Contrary to CSBA’s interpretation, Section 51932(b) does not say parents cannot opt out of instruction, materials, presentations, or programming that discuss gender, gender identity, or gender expression. Nor does Section 51932(b) prohibit districts from notifying parents when such instruction, materials, presentations or programming is occurring.
CHYA Requires Instruction and Materials Teach about Gender and Sexuality
Section 51933(d)(6) of CHYA requires instruction and materials teach about gender, providing:
“All comprehensive sexual health education and HIV prevention education pursuant to Section 51934, whether taught or supplemented by school district personnel or by outside consultants or guest speakers pursuant to Section 51936, shall satisfy all of the following criteria:…
Instruction and materials shall teach pupils about gender, gender expression, gender identity, and explore the harm of negative gender stereotypes.”
Section 51939(a) mandates that districts honor parental opt out of CHYA material, stating:
“A pupil may not attend any class in comprehensive sexual health education or HIV prevention education, or participate in any anonymous, voluntary, and confidential test, questionnaire, or survey on pupil health behaviors and risks, if the school has received a written request from the pupil’s parent or guardian excusing the pupil from participation.”
None of these sections prohibit notification or opt outs of gender instruction, materials, presentations, or programming.
CHYA should be updated to include a requirement that districts honor parental opt out of gender and sexuality content, but the State Legislature is not likely to make such a change. Regardless, the Supreme Court in Mahmoud v. Taylor requires that districts honor parental request for notice and opt out of gender and sexuality content in order to respect the First Amendment rights of parents.
California Law Also Requires Districts to Honor Opt Outs for Non-Religious Reasons
The California Supreme Court also recognizes a family’s right to opt their child out of instruction to which they are conscientiously opposed, from religious convictions or otherwise. Hardwick v. Bd. of Sch. Trustees of Fruitridge Sch. Dist. (1921) 54 Cal.App. 696, 704. In that case, parents objected to their children’s participation in the public school’s mandatory dance classes because it violated their religious beliefs. The parents proposed alternative ways to satisfy the state’s physical-exercise requirements, which the principal refused to consider. The children were expelled from the school for their absence from the class, and their parents sued. The Supreme Court of California ultimately ruled in favor of the parents, stating that as long as the parents’ requests “relate to matters in rearing and education of their children,” are “not offensive to the moral well-being of the children,” and are not “inconsistent with the best interests of society,” the public school must accommodate.
To rule otherwise, the Supreme Court of California asserted, would be to subvert “the home life so essential to the safety and security of society and the government which regulates it—the very opposite effect of what the public school system is designed to accomplish.”
School districts must respect that children who attend school are not their children—they are their parents’ children. It is not a school district’s job to instill in children any particular ideology or worldview (in fact, that is prohibited by law), and parents’ opt out requests relating to matters in rearing and education that are not offensive to the moral well-being of the children must be accommodated by a public school.
Under Hardwick, children of persons conscientiously opposed to certain instruction, from religious convictions or otherwise, cannot be compelled, on pain of expulsion from school and of the denial of the right to attend any public school of the county, to participate in such instruction.
Advance Notice and Opt-Outs Also Required When Gender Ideology is Taught in Mentoring Programs due to Compelled Speech
In S.E. v. Grey, No. 3:24-cv-00811 (S.D. Cal. May 12, 2025), Encinitas Unified School District required two fifth-grade boys and their assigned kindergarten buddies to read and watch My Shadow is Pink and do an activity, pressuring the kindergartners to choose a color to represent their own shadows. When plaintiffs asked why they were not provided advance notice, the district told them they were not permitted to opt out because the buddy class was not part of a “health unit.” In other words, the district was following CSBA and activist guidance interpreting California law to mean that opt outs are prohibited for non-reproductive sexuality and gender identity content.
Plaintiffs sought an injunction, contending the district violated their child’s rights under the First Amendment by compelling him to affirm a message he disagrees with that is contrary to his religious beliefs. The court granted relief, requiring the school district to provide advance notice and opt-outs when gender identity material is taught in mentoring programs. While this district court case was decided before Mahmoud, many of the same themes present in Mahmoud are present here. However, unlike Mahmoud, this case was not decided on free exercise of religion, but on compelled speech. Accordingly, districts must be mindful about conveying normative messages on topics like gender ideology and sexuality not just for fear of violating the free exercise rights of parents, but also for compelling a child to say something he does not believe and would not otherwise say—regardless of the parents’ religion.
Recommendation:
For Districts: Rescind all policies and practices prohibiting notification and opt outs of gender ideology and sexuality content. Inform parents of their rights under the United States Constitution and California Constitution (particularly in view of the recent decision in Mahmoud), and notify parents in advance of instruction on gender, gender expression, gender identity and “LGBTQ+-inclusive” topics.
Structure all instruction in any subject concerning the above topics similarly to health class—a separate unit of instruction with notice and opt out rights. Districts “cannot escape [their] obligation to honor parents’ free exercise rights by deliberately designing [their] curriculum to make parental opt outs more cumbersome.” (p. 39, Slip Op.)
Educators should be trained on how to present lessons on permissible topics—such as the history of the gay rights movement or related historical figures—versus lessons which the Supreme Court in Mahmoud identified as “unmistakably normative” as a result of being “designed to present certain values and beliefs as things to be celebrated, and certain contrary values and beliefs as things to be rejected.”
For Parents: Provide written notice to your district on an annual basis regarding your desire to be notified and to opt out of curriculum pertaining to gender, gender expression, gender identity and LGBTQ+-inclusive subjects.
Julie Hamill is an attorney and president of California Justice Center. She is the founder of Alliance of Los Angeles County Parents and a Palos Verde Peninsula Unified School Board Trustee.
