Should Public Schools Allow More Curricular Opt-Outs to Retain Students?

Two months ago, in Mahmoud v. Taylor, the Supreme Court's 6-3 conservative supermajority delivered a potentially devastating blow to public schools. Justice Alito's opinion for the Court held that parents are constitutionally entitled to opt their children out of classes and activities that contradict their religious beliefs. As I wrote on this blog three days after Mahmoud was decided, the case is sweeping in its possible implications. Mahmoud itself involved objections to an LGBTQ+ inclusive curriculum, but parents could have religious objections to instruction in a wide range of subject matter areas, including astronomy, biology, geology, and, as Justice Sotomayor's dissent warns, much more--such as a parental objection to any materials that mention "women working outside the home" if that "conflicts with the family's religious beliefs."

In my prior essay on Mahmoud, I complained that the Court's opinion gave inadequate weight to the administrative burden that its ruling would place on public schools. In practice, however, and as various other critics of the opinion have noted, there is another potential impact of the ruling. Given the ideological origin of parental complaints, they will likely focus on a few key areas: LGBTQ inclusivity, recognition of the history and persistence of racism in the United States (coded inaccurately as critical race theory), and other lessons that the right pejoratively describes as "woke." Faced with waves of opt-out requests that cannot be readily accommodated without substantial curricular disruption, school districts may choose simply to eliminate the contested portions of their curriculum for all students. Indeed, it is not fanciful to imagine that such an outcome is the aim of at least some of the leaders of the movement for parental rights to opt out of particular lessons on religious grounds.

Yet, even as I remain convinced that Mahmoud is misguided as a matter of constitutional law, I wonder whether there are policy reasons why public schools should frequently try to accommodate opt-out requests by parents--and not just from parents who offer religious grounds for opting out.

In my earlier column, I mentioned that I have some sympathy for parents who do not wish their children to be coerced to participate in activities contrary to their values, citing my objections to dissection when my children were in elementary school. I was careful to distinguish between schools that require participation in such activities as opposed to merely providing information to students, even when the information has a normative tilt. That distinction was based on my longstanding view that a liberal pluralistic society cannot reasonably accommodate extravagant views about what constitutes complicity.

There may now be an additional reason for public schools to try to be more accommodating of parental objections to aspects of the curriculum. As documented in a recent NY Times story and a follow-up episode of The NY Times podcast The Daily, public schools around the country are facing declining enrollments--fueled by declining birth rates and the increased availability of publicly funded charter schools, private schools, and home-schooling options.

If the only concern were for the children whose parents wished to opt them out, then accommodating them by permitting them to opt out of parts of the curriculum could be sensible. The school would not lose the state tuition money that would go with the student to one of the alternatives, and insofar as a public school education aims to inculcate civic values, having the students in public school for most but not all of the public school curriculum might be thought better than seeing those students miss out entirely on the public school experience. That better-half-a-loaf-than-nothing calculus would seem especially compelling where the alternative to public school is a pervasively religious school or home schooling that aims at instilling reactionary norms.

The chief difficulty is that, as Mahmoud itself illustrates, allowing any particular student to opt out of any part of the curriculum has external effects. Some of these are logistical. What will the opt-out students do while the rest of the students are engaged in the lesson at issue? Who will supervise them? In what space? (Many schools lack extra classrooms just lying about idle.) Etc.

There is also a communicative impact. Schools invariably will find that they cannot opt students out of everything parents find objectionable. Thus, allowing an opt-out from parts of the curriculum that promote (or even just expose students to) anti-racist, feminist, LGBTQ+ inclusive, and other lessons to which some parents object but not allowing an opt-out from, say, math or English grammar sends a not-so-subtle message to the other students that the former elements of the curriculum are both less important and more controversial than the latter.

For middle school and high school students, and perhaps even some older elementary school students, electives can be a partly satisfactory solution. In most public high schools, students--typically with consent--already have some substantial element of choice within the curriculum. Will they study Spanish, French, or some other foreign language? Will they play in the band or orchestra? Will they enroll in AP classes? Which ones? Etc. Giving parents a choice whether to consent to their children taking some number of classes that are likely to be deemed objectionable by some subset of parents could be perceived as less of a denigration of those classes if the choice is one among many that students and their parents must make in constructing a schedule.

That said, making more of the curriculum elective is not a panacea. More options available to students and parents will mean that schools will need to employ more teachers than they would in a regimented uniform curriculum. That will impose financial costs at a time when public schools are struggling to meet their existing needs in the face of dwindling student bodies and accordingly dwindling resources.

In the end, the same difficulty that led the school district not to accommodate the parents in Mahmoud will likely end up frustrating any substantial effort to please everybody through a regime of choice within the public schools. For understandable tactical reasons, the district's lawyers characterized that problem in Mahmoud as one of practicality. However, the true underlying problem is polarization.

The late-19th and early-to-mid-20th century ideals of the public school as a place in which society socialized young citizens in a common American creed was never fully realized in practice. After all, there has been substantial disagreement about what that creed consists of and in how coherent it ever was. The work of Rogers Smith on the competing and contradictory strands of the American creed--including its very dark side--is especially salient here.

Even so, there was a time when it was acceptable to a broad swath of Americans that public schools were a place where young people could be educated about those competing strands. No longer. Now the very idea of using schools to inculcate shared values seems hopeless. We cannot agree on the existence of obvious facts, so of course we cannot agree on values.

--Michael C. Dorf