This article was originally published in the Florida Education Law Journal, Winter 2026 issue and is republished here with permission by the publication.

by The Florida Bar In June 2025, the United States Supreme Court issued its decision in Mahmoud v. Taylor, 145 S. Ct. 2332 (2025), holding that a Maryland school district’s decision to introduce storybooks with certain topics into its curriculum—combined with the inability of parents to opt their children out from being present when these storybooks were presented—burdened the families’ First Amendment free exercise rights. In so holding, the Court further clarified what does and does not constitute infringement of religious exercise in the public school context.

Mahmoud concerned the decision by the Board of Education of Montgomery County, Maryland, to introduce a number of “LGBTQ+-inclusive” storybooks into the curriculum of its schools.[1]  The stated aim was to “disrupt” students’ thinking about sexuality and gender.[2] The Board apparently refused to give parents notice of when these books would be used in the classroom and asserted that students’ attendance during these classes was mandatory.[3] A number of parents sued the Board to enjoin these policies; the Supreme Court ultimately held that because the parents are likely to succeed in their challenge to the Board’s policies, they were entitled to a preliminary injunction.[4]

This case began in the years leading up to 2022 when the Board decided its existing curriculum was not representative of its students and families based on a lack of “LGBTQ+-inclusive texts.”[5] To remedy this perceived deficit the Board adopted 13 such texts for use in its curriculum from pre-K to 12th grade; 5 of these books were approved for use in Kindergarten through fifth grade.[6] The Board first introduced these books for the 2022–2023 school year.[7] It was not long before parents contacted the Board, asking that their children be permitted to opt out of classroom instruction related to these books.[8]  The Board, initially, notified objecting parents when the books would be taught and allowed them to excuse their children from classes involving the books; this, however, only lasted until March 2023 when the Board released a statement informing families that students would not be allowed to opt out of these classes, nor would teachers provide advance notice of when these books would be taught moving forward.[9] In response, thousands of parents voiced their dissatisfaction with the Board’s decision, including via petition to the Board as well as attendance at Board meetings.[10]

When the Board did not change course, a group of parents sued, arguing the no-opt-out policy violated the free exercise of their religion, and sought an injunction that prohibited the Board from forcing their children—over their parents’ objections—to read, listen to, or discuss the books at issue.[11] In siding with the parents, the Court relied on the tenet that the right to free exercise of  religion—enshrined in the First Amendment to the United States Constitution[12]—“is not shed at the schoolhouse gate,” and as such, “[g]overnment schools, like all government institutions, may not place unconstitutional burdens on religious exercise.”[13] Upon this foundation, the Court determined the Board’s policies unconstitutionally burdened the parents’ religious exercise, given the “objective danger” the Board’s policies posed to the parents’ rights to be free from substantial government interference in the religious upbringing and development of their children.[14]

Specifically the Court noted the Free Exercise Clause protects the right of parents to educate their children in their desired religious belief; this right is not limited to the household, but rather extends to the choices parents wish to make for their children beyond the home.[15] The Court has “thus  recognized limits on the government’s ability to interfere with a student’s religious upbringing in a public school setting.”[16] Looking to past precedent, the Court drew upon its prior decision in West Virginia State Board of Education v. Barnette, wherein it agreed a policy requiring students to participate in a salute honoring the country—or else face punishment including expulsion—“could not be squared with the First Amendment” because the challengers there, Jehovah’s Witnesses, considered the flag a “graven image” and refused to salute it, pursuant to their faith.[17] In conditioning access to public education on a requirement that students affirm a position in contravention of their religious beliefs, the West Virginia State Board committed unconstitutional direct coercion.[18]

But such “direct coercion” is not the only kind of proscribed behavior; the Supreme Court has also struck down policies that “impose more subtle forms of interference with the religious upbringing of children.”[19] Namely, in Yoder v. Wisconsin, the Court held a Wisconsin law requiring parents to send their children to public or private school until the age of 16 impermissibly burdened the free exercise of a group of Amish families, who refused to send their children to public school after the completion of eighth grade and argued the values taught in high school unacceptably differed from those of their community.[20] Unlike Barnette, where the religious infringement was direct—that is, the students there were compelled to affirmatively take action against their religious beliefs[21]—in Yoder, there was “no suggestion that the compulsory-attendance law would compel Amish children to make an affirmation that was contrary to their parents’ or their own religious beliefs.”[22] Rather, the impermissible burden to religious exercise was that compulsory high school attendance would “expose Amish children to worldly influences in terms of attitudes, goals, and values contrary to their beliefs” which would “substantially interfere with the religious development of the Amish child.”[23]

Recognizing that whether a law substantially interferes with religious development is a fact-intensive question, the Mahmoud Court noted answering this question will depend on “the specific religious beliefs and practices asserted,” the “specific nature of the educational requirement or curricular feature at issue,” the age of students involved—i.e., educational requirements “targeted toward very young children” may be viewed differently than those for high school students—and the specific context in which the instruction or material at issue arises—that is, “[a]re they presented in a neutral manner, or are they presented in a manner that is ‘hostile’ to religious viewpoints and designed to impose upon students a ‘pressure to conform. ’”[24] Against this backdrop, the Court concluded that the Board’s introduction of “LGBTQ+-inclusive” storybooks, combined with the decision to withhold notice from parents and prohibit opt outs from classes utilizing the storybooks, substantially interfered with the religious development of their children because it imposed a burden on religious exercise similarly found unacceptable in Yoder.[25] The Court noted that the books displayed certain values and beliefs “as things to be celebrated and certain contrary values and beliefs as things to be rejected.”[26] And because the students’ religious beliefs fell in the latter category, the messages these books carry—whether overtly or subtly—meant “these books carry with them a very real threat of undermining the religious beliefs that the parents wish to instill in their children” because they convey a message that is “hostile” to their parents’ religious beliefs.[27]

The Court further found that this “objective danger” was heightened based on the young age of the students and the fact these messages were presented by authority figures.[28]  The Court noted it had previously recognized the potentially coercive nature of classrooms in this respect.[29] As the Board’s policies “require[d] teachers to instruct young children using storybooks that explicitly contradict their parents’ religious views,” while also encouraging teachers to correct students who expressed “a degree of religious confusion,” they “carrie[d] with it precisely the kind of objective danger to the free exercise of religion that the First Amendment was designed to prevent.”[30]

In so holding, the Court disagreed that the instruction at issue was simply exposing students to potentially objectionable ideas or messages; more importantly, the issue was not one of exposure but rather whether the curriculum would substantially interfere or undermine the religious development and beliefs the parents sought to instill in their children.[31] Nor was it a solution, as some amici argued, that the parents could remove their children and place them in private school or homeschool them.[32] This is because “when the government chooses to provide public benefits it may not condition the availability of those benefits upon a recipient’s willingness to surrender his [or her] religiously impelled status.”[33]

Having concluded the Board’s policies constituted a burden on the parents’ free exercise rights, the next question was whether it was a permissible burden.[34] While the government is generally allowed to place “incidental burdens on religious exercise so long as it does so pursuant to a neutral policy that is generally applicable,”[35] because of the character of the burden at issue here, the analysis differed[36] That is, “when a law imposes a burden of the same character as that in Yoder”—which the Court determined the Board’s policies did—“strict scrutiny is appropriate regardless of whether the law is neutral or generally applicable.”[37] To survive strict scrutiny requires the government “demonstrate that its policy advances interests of the highest order and is narrowly tailored to achieve those interests.”[38] The Court concluded that—even assuming the Board’s policies advanced its “compelling interest in having an undisrupted school session conducive to the students’ learning”[39]—the Board had not shown the no-opt-out policy was necessary or narrowly tailored.[40] Since the Board permitted opt outs in other circumstances, its argument that providing opt outs here would be infeasible or unworkable—or that the curriculum at issue meaningfully differed from other programs where opt outs were permitted—was rejected.[41] So too the argument that when the Board had tried to offer opt outs in the past it resulted in too many absent students.[42] This was because “the Board’s concern is self-inflicted, given its “doubtless” knowledge that the families and students it served represented a range of “substantial religious communities whose members hold traditional views on marriage, sex, and gender,” which conflicted with messages of the storybooks at issue.[43] As the Court put it simply: “[t]here is no de maximis exception to the Free Exercise clause.”[44]

Mahmoud is a timely reminder that public schools must be mindful of their policies and conduct and how they may impact the free exercise of students. In addition to the protections provided by the First Amendment of the federal constitution, Florida has effectively enshrined religious freedom protections in both its constitution[45] as well as the Florida Student and School Personnel Religious Liberties Act.[46] It is not enough for a school to argue that observing free exercise of religious behavior may be unworkable or create administrative roadblocks, especially when those problems can be considered self-created. And given that burdens of religious exercise akin to Yoder and Mahmoud will always be required to pass strict scrutiny, any school board will have a high threshold to clear to salvage the challenged law or policy.

In this sense, schools should be open-minded about any expressed religious concerns and try to accommodate any requests from parents about curriculum or policies in this vein. This means considering the religious beliefs or practices in question, the age of the students in question and the context in which these messages are being received, as well as questioning whether the message can be considered neutral or is—either directly or indirectly—hostile to religion. Asking these questions in advance and having strong policies in place providing necessary protections respecting the free exercise of students—reinforced by consistent training and procedures on said policies—can stave off lawsuits like that which the Board faced in Mahmoud. The provision of public schools is a benefit the Supreme Court has repeatedly held the government violates the Free Exercise Clause when it excludes religious individuals or entities from otherwise publicly available benefits or programs solely because of their religious character.[47] Public schools in Florida should heed this message.

[1] Mahmoud, 145 S. Ct. at 2341.

[2] Id. at 2341–42.

[3] Id. at 2342.

[4] Id.

[5] Id. at 2343.

[6] Id.

[7] Id. at 2345.

[8] Id.

[9] Id. at 2346.

[10] Id.

[11] Id. at 2349.

[12] U.S. Const. amend. I.

[13] Mahmoud, 145 S. Ct. at 2350 (citation modified (quoting Tinker v. Des Moines Indep. Cmty.

Sch. Dist., 393 U.S. 503, 506–07 (1969)).

[14] Id. at 2350–51.

[15] Id. at 2351.

[16] Id.

[17] Id. at 2351–52 (citing W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 626, 629–30

(1943)).

[18] Id. at 2352 (citing Barnette, 319 U.S. at 630–31).

[19] Id. (citing Wisconsin v. Yoder, 406 U.S. 205 (1972)).

[20]  See id. (citing Yoder, 406 U.S. at 211).

[21] See Barnette, 319 U.S. at 641–42.

[22] Mahmoud, 145 S. Ct. at 2352.

[23] Yoder, 406 U.S. at 218 (citation modified) )

[24] Mahmoud, 145 S. Ct. at 2353.

[25] Id.

[26] Id.

[27] Id. at 2353–55 (citation modified (quoting Yoder, 406 U.S. at 211, 218).

[28] Id. at 2355.

[29] Id. (first citing Edwards v. Aguillard, 482 U.S. 578, 584 (1987), and then citing Lee v.

Weisman, 505 U.S. 577, 592 (1992)).

[30] Id. at 2355–56 (quoting Yoder, 406 U.S. at 218).

[31] Id. at 2356.

[32] Id. at 2359.

[33] Id. (citation modified (quoting Trinity Lutheran Church of Columbia, Inc. v. Comer, 582

U.S. 449, 462 (2017)).

[34] Id. at 2360.

[35] Id. (citing Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 878 (1990)).

[36] Id. at 2360–61.

[37] Id. at 2361.

[38] Id. at 2361–62 (citation modified (quoting Fulton v. Philadelphia, 593 U.S. 522, 541

(2021)).

[39] Id. at 2362 (quoting Grayned v. City of Rockford, 408 U.S. 104, 119 (1972)).               

[40] Id.

[41] Id.

[42] Id.

[43] Id. at 1263.

[44] Id.

[45] Art. I, § 3, Fla. Const.

[46]  § 1002.206, Fla. Stat.

[47] See, e.g., Carson ex rel. O.C. v. Makin, 596 U.S. 767 (2022); Espinoza v. Mont. Dep’t of

Rev., 591 U.S. 464 (2020); Trinity Lutheran Church of Columbia, Inc., 582 U.S. at 449.