In response to learning that some school districts and county offices of education (COEs) expect a high volume of opt-out requests based on the recent Supreme Court decision, CSBA offers some key considerations for creating opt-out procedures and forms.
On July 7, CSBA issued “Policy implications of Mahmoud v. Taylor,” which provided an overview of the Mahmoud decision and shared CSBA’s preliminary analysis of its policy implications. Subsequent to that initial communication, CSBA has become aware that some members expect to receive a high volume of opt-out requests in light of the decision and have asked for support in preparing the necessary procedures and forms.
In Mahmoud, the U.S. Supreme Court held that the First Amendment required a district to provide parents with notice and the ability to opt their elementary school students out of instruction involving LGBTQ+ storybooks on the grounds that it violated their First Amendment rights by substantially interfering with their children’s religious development. As noted in CSBA’s July 7 communication, however, the Court did not specify how districts and COEs are to implement the requirement to provide notice and permit opt-outs. The opinion simply noted that the question of whether certain instructional content “substantially interfer[es] with the religious development” of a student “will always be fact-intensive.” The Court explained:
It will depend on the specific religious beliefs and practices asserted, as well as the specific nature of the educational requirement or curricular feature at issue. Educational requirements targeted toward very young children, for example, may be analyzed differently from educational requirements for high school students. A court must also consider the specific context in which the instruction or materials at issue are presented. Are 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”?
State law already contains instances in which districts and COEs are required to provide parents/guardians with notice and the opportunity to opt their students out of specified instruction. Education Code 51938 and 51939, for example, require that districts and COEs provide parents/guardians with notice of planned instruction in comprehensive sexual health education and HIV prevention education and the opportunity to opt their students out of such instruction. (The California Department of Education has published a sample notification and opt-out letter for this purpose.)
Based on Mahmoud as well as the notice and opt-out requirements found in the Education Code, CSBA has identified the following four considerations for districts and COEs when developing opt-out procedures and forms.
Opt-out scope: What instructional content, including instruction outside the classroom such as required assemblies, can parents/guardians opt their students out of?
At a minimum, Mahmoud likely requires that any “LGBTQ+ storybook” that is part of the elementary school curriculum be included in the opt-out scope — i.e., what parents/guardians can opt their students out of. However, the Court’s reasoning may be interpreted to apply to other instructional content that parents/guardians could view as substantially interfering with the religious development of their children. Therefore, districts and COEs should consult CSBA’s District and County Office of Education Legal Services or other legal counsel to determine whether other instructional content should be included in the opt-out scope.
Access to instructional content: How are parents/guardians able to review instructional content to determine whether they want to opt their students out?
After working with legal counsel to determine the instructional content included in the opt-out scope, districts and COEs should provide a means for parents/guardians to review that instructional content to determine whether they want to opt their students out. In fact, parents/guardians already have the right to examine certain instructional materials under state law. For instance, Education Code 49091.10 provides that “primary supplemental instructional materials and assessments, including textbooks, teacher’s manuals, films, audio and video recordings, and software . . . compiled and stored by the classroom instructor” must be made “available promptly for inspection by a parent or guardian in a reasonable timeframe or in accordance with procedures determined by the governing board.” (The federal Protection of Pupil Rights Act, specifically 20 USC 1232h, contains a similar requirement for districts and COEs receiving federal funding.) Districts and COEs should review their procedures for examination of instructional materials as well as Board Policy/Administrative Regulation 5020 – Parents Rights and Responsibilities.
Additionally, Education Code 49091.14 requires each district and COE school to create an annual course catalogue or “prospectus,” which includes “[t]he curriculum, including titles, descriptions, and instructional aims of every course offered.” Each school is then required to make its prospectus available for review upon request. (While Education Code 49091.14 permits districts and COEs to charge requesters for the cost of duplication of the prospectus, districts and COEs should be wary of doing so; such a cost may be seen as an unconstitutional financial barrier to exercising the First Amendment right set forth in Mahmoud.) Lastly, to the extent that a district or COE develops new procedures or updates policies to provide a means for parents/guardians to review instructional content, districts and COEs should consult CSBA’s District and County Office of Education Legal Services or other legal counsel to determine whether such changes impact working conditions and would need to be the subject of negotiations or impact bargaining.
Protections and supports: What protections and supports will be provided to students whose parents/guardians have opted them out of specific instructional content?
Districts and COEs may want to consider including a clear statement that they will not subject students to disciplinary action, academic penalty or other sanction if their parents/guardians opt them out of instruction included in the opt-out scope. Such an adverse action is already prohibited by Education Code 51939 for a student who has been opted out of comprehensive sexual health education and HIV prevention education. Additionally, districts and COEs may want to consider including a statement that they will provide alternative educational activities for students whose parents/guardians opt them out of instruction included in the opt-out scope. The provision of alternative educational activities is also required by Education Code 51939, but again only where a student has been opted out of comprehensive sexual health education and HIV prevention education. Additionally, to the extent that districts and COEs change or develop new protections or supports for students, districts and COEs should consult CSBA’s District and County Office of Education Legal Services or other legal counsel to determine whether such changes impact working conditions and would need to be the subject of negotiations or impact bargaining.
Direction to parents/guardians: What information do parents/guardians need to submit in order to opt their students out of specific instructional content?
In Mahmoud, the Court wrote that determining whether a district (or COE) is required to offer an option to opt out of specific instructional content “will always be fact-intensive” and “will depend on the specific religious beliefs and practices asserted, as well as the specific nature of the educational requirement or curricular feature at issue.” This suggests that districts and COEs — in order to collect the necessary information to make this determination — may want to consider requiring opt-out requests to (i) identify, with specificity, the instructional content of which the student should be opted out, (ii) describe the specific religious beliefs, customs and/or practices with which the specific instructional content substantially interferes, and (iii) explain how the specific instructional content substantially interferes with the specific religious beliefs, customs and/or practices and include any grade level or individual characteristics relevant to the opt-out request. Regardless of what information is required to be included in an opt-out request, districts and COEs should consult CSBA’s District and County Office of Education Legal Services or other legal counsel when reviewing and evaluating whether the request should be granted.
