Some Education Issues Don't Belong in Court

The legal system isn't designed to answer nuanced questions.

Photo by Jackie Hope on Unsplash

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Courts aren’t the best venues for consideration of nuanced issues. The law doesn’t accommodate shades of gray; it demands yes-or-no answers that can have ramifications far beyond the facts of an individual dispute. Two cases currently before the Supreme Court involving education and religion illustrate the potential pitfalls of turning to the legal system to resolve complex questions.

One, Mahmoud v. Taylor, was brought by parents who object to picture books with LGBTQ themes used to teach reading in public elementary schools in Montgomery County, MD. I’ve looked at a few of the books in dispute, and while I would have no problem having my own children exposed to them—if my children were still in elementary school, which they are not—I can understand why the books might make families with more culturally conservative views uncomfortable.

One of the books, My Rainbow, is about a transgender girl. Another, Love, Violet, is about a little girl who develops a crush on a female classmate. According to the school district’s brief, others involve “a niece meeting her uncle’s husband-to-be, a prince falling in love with a knight as they battle a dragon …, and a transgender boy sharing his gender identity with his family.” The parents’ brief describes others, including one that “invites children to ponder what it means to be ‘transgender’ or ‘non-binary,’” and another about a child whose pronouns change “depending on how I feel.”

The parents who brought the lawsuit—some Muslim, some Christian—argue that the content of the books conflicts with their religious beliefs.They’re not asking the district to eliminate the books from the curriculum but rather to let them opt their children out of lessons when the books are used for instruction. State law provides for the right to such opt-outs, but only in sex education classes.

In this case, the school district has argued, the books aren’t being used to teach about gender or sexuality or to advocate any particular views. Rather, according to its brief, they’re being used to “foster and enhance literacy skills.” My Rainbow, for example, is supposed to teach children “how to identify the theme of a story and summarize the supporting details and ideas.” But if that’s the case, why not use books that are less controversial? (I’ll leave to one side the point that trying to teach these kinds of reading comprehension skills divorced from any particular content doesn’t actually work.)

In any event, it’s clear the district chose these particular books because of their content. The district’s brief goes on to say that including the books was part of an effort to “better represent MCPS students and their families” by including stories that reflect a range of backgrounds. That is, in my view, a laudable goal.

Weighing Goals Against Consequences

But even laudable goals need to be weighed against their potential negative consequences. In this case, some parents who object to the books have gone so far as to remove their children from the school system, possibly disrupting their education, and the district has had to expend a lot of resources on a lengthy lawsuit, diverting funds and attention from core educational needs.

The controversy may even have had the unintended effect of making children from LGBTQ families feel self-conscious about their backgrounds. Initially, the school district did allow parents to opt their children out when these books were used, but there were so many requests that the policy became an administrative headache. In addition, according to the district’s brief, the exodus of children from the classroom risked “exposing students who believe the storybooks represent them and their families to social stigma and isolation.”

When deciding what topics to cover in a curriculum, it often makes sense for schools to be guided by consensus in order to avoid distracting controversies. In the case of LGBTQ issues, there’s a national bipartisan consensus that they don’t belong in the elementary classroom—and in Maryland specifically, voters say it’s inappropriate for teachers to discuss those issues in K-3 by a margin of more than 2 to 1. Perhaps most families in liberal Montgomery County don’t agree with that stance, but it’s far from a fringe belief. The lawyer representing the parents told the Supreme Court that “hundreds of parents complained” to the school board about the books.

But there is nuance to the issue. There’s more public support for teaching about LGBTQ issues at higher grade levels. And there might be more support for giving even young children access to a book in which gay themes are in the background—like Uncle Bobby’s Wedding, one of the titles at issue in the case—as opposed to books that focus on gender identity and pronouns. Courts aren’t well equipped to decide exactly what age levels or books should trigger a right to parental opt-outs.

Also, the legal standard judges need to apply is whether children are feeling “coerced” into changing their beliefs. But parents of five-year-olds might be legitimately concerned about influence that doesn’t rise to the level of coercion.

Avoiding Unnecessary Controversy

These are all questions best left to school officials rather than judges—and in this case it would have been wise for officials to compromise rather than dig in their heels. If large numbers of parents are trying to opt their kids out, maybe that’s a sign that administrators should reconsider the choice of topic. Other districts have avoided these kinds of distracting disputes by selecting topics with an eye to community consensus and by soliciting feedback from the public before adopting a curriculum.

That doesn’t mean, of course, that children from non-traditional families should ever be made to feel unwelcome or uncomfortable in the classroom. And families who want their kids to have access to books with LGBTQ themes should always be able check them out of the library and read them at home.

With some topics, schools might need to insist on teaching them even in the face of multiple complaints—and administrators should stand behind teachers in those cases. At the same time, it’s important to first ask if it’s crucial to teach a particular issue in a particular way at a particular grade level, or whether it’s possible to accomplish the same objective in a manner that doesn’t spark so much pushback.

In fact, since the litigation began the district has removed at least a couple of the books, apparently because of concerns about their content. And Montgomery County has recently switched to an elementary literacy curriculum called Core Knowledge Language Arts that doesn’t include any of the books. That raises the question of whether this lawsuit is necessary at all.

Judging from the oral argument, the Court seems likely to side with the parents. So we’re left with the prospect of a decision that could give parents a constitutional right to opt their children out of lessons on a whole range of issues they find objectionable, as long as they can attach them to a religious belief—including, perhaps, things like evolution. That’s not a good place to be.

A Catholic Charter School?

The other education/religion case pending in the Court that could put us in an uncomfortable place concerns an application for a charter school in Oklahoma, St. Isidore of Seville, that would be openly Catholic. The case is called Oklahoma Statewide Charter School Board v. Drummond.

Until recently, such a school would have been unthinkable. Public schools in the U.S. aren’t allowed to disseminate religion, and when I was on the board of a charter school almost 15 years ago, it was drummed into me that charter schools are public schools. That was because opponents of charter schools have argued that they’re actually private schools that are illegitimately draining public funds.

No, we board members were advised to respond. Charter schools have more autonomy than “traditional” public schools, but they’re subject to many of the same restrictions: they have to take all comers (or admit students through a lottery if they’re oversubscribed), adhere to state academic standards, and give state-mandated tests. No one even raised the question of whether a charter school could teach religious doctrine. Of course it couldn’t.

But now a carefully orchestrated campaign has culminated in a test case that could well upend that assumption, judging from accounts of the oral argument. If the Court rules in favor of St. Isidore, the 46 states that authorize charter schools might be constitutionally required not to discriminate against applicants who want their schools to promote religion.

It's true that other countries provide public funds to religious schools, and their societies haven’t fallen apart. Education researcher Ashley Berner has written a whole book arguing in favor of such “pluralistic” education systems. It’s full of thought-provoking arguments and interesting facts. Who knew that there were 36 publicly funded creationist schools in the Netherlands?

But there’s at least one crucial difference between the U.S. education system and the systems in those other countries: other countries specify what content all schools need to teach, including the religious ones. So the Dutch creationist schools need to teach evolution along with creationism, and their students need to be able to explain evolution on a government-mandated test.

As I’ve written before, I’m not comfortable with the idea of a publicly funded creationist school even in that context. Presumably such a school teaches evolution as though it were a myth, or at least a misconception, rather than a valid scientific theory—and I wouldn’t want my tax dollars supporting that. And under the U.S. system, a publicly funded creationist school wouldn’t need to teach anything other than creationism.

Catholic schools have value. In fact, they’ve generally provided their students with a better education than they could have gotten in the public system. That’s not because they’re traditional but because the traditions they follow happen to coincide in large part with what cognitive science tells us will work: a focus on teaching specific content and ensuring that students absorb and retain it. I’d like to see more public schools adopt that approach—just without infusing any religious doctrine.

A decision in favor of St. Isidore could mean requiring governments to fund all sorts of schools that label themselves religious, including ones that conservatives might find objectionable—like one run by The Satanic Temple. It could also lead to the demise of charter schools in left-leaning states. If the Supreme Court finds in favor of St. Isidore by holding that it’s not actually a public school, those states could legitimately argue they’re under no obligation to fund them.

Perhaps the conservative Catholic activists who planned the legal strategy behind the St. Isidore case should have thought about that possibility before bringing this issue to the courts.