Supreme Court justices blow holes in attorney's argument that teaching kindergarteners LGBTQ concepts is not 'coercive'

During arguments at the Supreme Court on Tuesday in the case of Mahmoud v. Taylor, justices with the high court pressed an attorney representing Montgomery County, Maryland, school board members over the exposure of ideas to students versus coercion. The case was brought forth by parents of students in the county, arguing that their free expression rights relating to religion are being violated by the county over its removal of parental opt-outs for storybooks relating to LGBTQ topics.

Representing Montgomery County Public Schools (MSPC), attorney Alan Schoenfeld said in his opening statement that "every day in public elementary school classrooms, children are taught ideas that conflict with their family's religious beliefs," and that "MCPS makes explicitly clear that students do not need to accept, agree with or affirm anything they read or anything about their classmates' beliefs or lives." Some of the books in question are kindergarten or 1st grade level.

In response to questioning from Justice Clarence Thomas regarding reinstating the opt-outs, Schoenfeld said, "the record makes clear that the school district did try to honor the opt-out, and at some point it became infeasible." The attorny later added after questioning from Justice Brett Kavanaugh as to why opt-outs were not feasible, "what’s in the record is that, with respect to these books as they were deployed in the classroom, there was high absenteeism in some schools. For example, dozens of students being opted out, I think Mr. Baxter said the average size of an elementary school in Montgomery County is 700 students. So each grade is 125." 

"If you have dozens of students walking out, making arrangements for those students to have adequate space and supervision and alternative instruction I think is infeasible," Kavanaugh said.

Kavanaugh noted that the petitioners "are not asking you to change what’s taught in the classroom. They’re not asking you to change that at all." He later added, "they’re only seeking to be able to walk out so that they don’t have to, the parents don’t have their children exposed to these things that are contrary to their own beliefs."

The argument at the center of Tuesday’s hearing was the question of exposure versus coercion as it relates to exposing students to new ideas. 

Schoenfeld said, "I think that the line that we advocate between exposure and coercion is the relevant one. And there may be circumstances where, given the age of the student or given the particular presentation of information in the classroom, a plaintiff may be able to make out a case that their child is being coerced."

Schoenfeld was later presented with the hypothetical of showing a Muslim student an image of Muhammad, to which he said that those circumstances amounted to the school coercing a student to act "contrary to a religious belief."

Justice Neil Gorsuch asked about guidance materials given to teachers. That guidance reads that a teacher should off this response to a student who says "a boy can’t be a girl because he was born a boy": "that comment is hurtful, and we shouldn’t use negative words to talk about people’s identifies." 

"Is that just exposure, or is that something else for a three to five-year-old?" Gorsuch asked.

Schoenfeld said that "the record is seriously underdeveloped on whether and how these support materials are used." Gorsuch replied, "let’s say a teacher does, as instructed though, and uses that. Is that exposure, or is that coercion in your world?"

Schoenfeld said he believed it is "exposure to particular ideas and teaching students to be civil in the classroom." He admitted that "there are certainly circumstances where use of that script in a particular context could give rise to a claim of coercion."

Gorsuch cited statements from board members, in which they said that students were "parroting their parents’ dogma, suggesting that some parents might be promoting hate and suggesting that it was unfortunate that they were taking a view endorsed by white supremacists."

Schoenfeld later replied, "They are taken largely out of context," adding that the "intemperate statements" had not "motivated the school board to adopt a policy that discriminates against people on the basis of religion."

Chief Justice John Roberts told Schoenfeld, "you said that nothing in the policy requires students to affirm what’s being taught or what’s being presented in the books. Is that a realistic concept when you’re talking about a five-year-old? I mean, you want to say you don’t have to follow the teacher’s instruction, you don’t have to agree with the teacher. I mean, that may be a more dangerous message than some of the other things."