"Defending Faith and Families Against Government Overreach: Mahmoud v. Taylor"
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House Education and the Workforce Subcommittee on Early Childhood, Elementary, and Secondary Education U.S. House of Representatives
Follow its sittingsSpeaker 2
Differences exist in the world around us, and part of a good education includes teaching students about tolerance and understanding. Banning books or preventing students from learning about differences serves to perpetuate a culture of hatred and fear. I do want to note some hypocrisy here. Countless times in this committee, my colleagues have said they want to give education back to the States. I've heard that numerous times over the years.
For the most part, they're talking about the curriculum. As we have repeated again in this committee, the federal government is not in charge of curriculum or what books are in schools. If parents don't like books or the curriculum, they can go to the school board and ask for a change. And if they don't like the school board's decision, they can elect a new school board. That's the kind of local control I thought my colleagues wanted.
My democratic colleagues and I are committed to fighting against politicizing education. We will continue to work with students, parents, educators, and communities until every student receives an accurate and high quality education in a safe, well funded environment without fear of gun violence or masked federal agents breaking down the classroom door. I look forward to the conversation, Mr. Chairman. I yield back the balance of my time.
Speaker 1
Pursuant to committee rule eight c, all members who wish to insert written statements into the record may do so by submitting them to the committee court electronically in Microsoft Word format by 5PM 14 days after this hearing. And without objection, the hearing record will remain open for 14 days to allow such statements and other extraneous material noted during the hearing to be submitted for the official hearing record. I will now introduce our witnesses. Our first witness is Mister Eric Baxter, the vice president and senior counsel at the Beckett Fund for Religious Liberty from Washington DC. Our second witness is Donald Docherty, a senior litigation counsel for the Defense and Freedom Institute from River Hills, Wisconsin.
Our third witness is Mister Zalman Rothschild, an assistant professor of law at Yeshiva University, Cardozo School of Law from New York City. And our fourth witness is Miss Sarah Parshel Perry, a vice president and legal fellow at Defending Education from Arlington, Virginia. We thank our witness, we thank the witnesses for being here today, and we look forward to your testimony. Pursuant to committee rules, I would ask that each limit your oral presentation to a three-minute summary of your written statement, as committee members have many questions for you. The clock will count down from 3 minutes.
However, pursuant to committee rule eight d and committee practice, we will not cut off your testimony until you reach the 5 minute mark. I'd also like to remind the witnesses to be aware of your responsibility to provide accurate information to the subcommittee. I will first recognize Mr. Baxter for your testimony.
Speaker 3
Good morning, Chair Kylee, Ranking Member Bonomichi, and distinguished committee members. I'm Eric Baxter from the Beckett Fund for Religious Liberty, and the lead attorney for the plaintiffs in Mahmoud v. Taylor. Mahmoud is the Supreme Court's most significant parental rights case in half a century. It affirms parents' right to opt their children out of public school instruction that violates their religious beliefs, but it also signals a move to strengthen religious liberty more broadly. The case arose after the Montgomery County, Maryland School Board introduced LGBTQ storybooks with a stated goal of disrupting students' thinking about gender and sexuality.
The curriculum introduces children as young as three to pride parades, playground romance, and gender transition. Teachers are instructed to emphasize that doctors only guess at students' sex at their birth and to frame contrary views as unfair and hurtful. The curriculum was immediately controversial. Even the elementary school principal's union warned it was age-inappropriate, factually dubious, and dismissive of religious beliefs. Parents were first told they could opt their kids out, but the board soon reversed, saying they could not even be notified when the books were read.
At a board meeting, over 1,000 parents, largely Muslim and Ethiopian Orthodox, expressed concern. The board responded by comparing them to xenophobes and white supremacists. The parents sued, seeking not to remove the curriculum but simply to restore the opt-outs. After two lower courts rejected the parents' claims, the Supreme Court, in a six-three ruling, reversed. It said the curriculum was unmistakably designed to impose values hostile to many faiths, and that it exerted psychological pressure on young children to conform.
The court concluded that parents' right to direct the religious upbringing of their children would be an empty promise if it did not extend into the classroom. This ruling has enormous significance. Schools nationwide must now adopt policies to accommodate students' religious beliefs or risk financial exposure for themselves and their employees. The ruling also calls into question the widespread school policies that support gender transitioning behind parents' backs. Any effort to undermine parents on such religiously sensitive matters cannot be squared with Mahmoud.
Beyond this immediate impact, Mahmoud also bypassed employment division v. Smith, an earlier Supreme Court ruling that significantly limited free exercise protections. That move undermines Smith's continued viability. If the parents here get to bypass Smith, why should teachers challenging the same policy have to satisfy its higher standards? And if not teachers, why is anyone else defending their own religious liberty? In this sense, Mahmoud portends Smith's demise, which will strengthen religious liberty for all.
Thank you for shining a light today on this remarkable Supreme Court opinion.
Speaker 4
Chairman Kyle and ranking member Bonamichi, thank you for the opportunity to testify today. My name is Don Daugherty, and I'm senior litigation counsel for the Defense of Freedom Institute. In my time, I'm going to focus on the implications of Mahmoud v. Taylor going forward. Parents of faith will be able to use Mahmoud to push back against overreach by public schools, and the case should lead to more curriculum transparency. For example, now in Montgomery County, each semester students receive refrigerator magnets detailing the upcoming curriculum, including books to be read, so that their parents can decide whether they want to opt out or not.
Also, another case in late December, in Massachusetts, a federal court there relied on Mahmoud to enjoin Lexington Public Schools when the schools refused to allow parents to opt their five-year-old out of LGBTQ-themed books that violated the family's Christian faith. So that's just a very recent case. At the same time, Mahmoud is not a license for parents to micromanage the curriculum, and courts will need to define more clearly what this free exercise parental right encompasses. Some parents in Mahmoud objected to the storybook series on purely secular grounds, and the Supreme Court has recognized that under the due process clause of the Fourteenth Amendment, that is apart from the free exercise clause of the First Amendment, parents have a substantive right to direct the upbringing and education of their children generally, not just in matters of religion. Guidance from the federal courts will be needed on this issue as well, going forward.
Finally, a mystery surrounding Mamoud is what critical parent principle was the Montgomery County Board of Education trying to vindicate by defending its no opt out policy all the way to the Supreme Court. Many people wondered about this. In addition to Montgomery County families, many Montgomery County principals and teachers in public schools questioned the use of the storybook series. Before the case was decided, The Washington Post and The New York Times criticized the board's decision to force parents to go to court, and the board expended considerable taxpayer dollars fighting those parents when they could have easily reached, I believe, an out of court settlement. During oral argument at the Supreme Court, justice Kavanaugh, who pointed out that he is a lifelong resident of Montgomery County, stated that he was a bit mystified how it came to this, noting that Maryland was founded on religious liberty and expressing surprise that the board had decided that this is the hill we're going to die on.
Justice Alito similarly asked the board's attorney, what's the big deal about allowing parents to opt their children out? And even Justice Elena Kagan, who ultimately dissented, said she suspected that there were a lot of nonreligious parents who weren't all that thrilled about this. Although no one can read the board's minds as to what they hope to achieve through this case, at least, Mamoud did reveal how disconnected some public schools have become from the families that they serve. The first amendment and the bill of rights generally exist to protect individual rights from a tyranny of the majority. As public schools more and more encroach on aspects of a children's upbringing beyond the court curriculum, the importance of constitutional bulwarks only increases. In Mahmoud, the Supreme Court wisely reinforced the free exercise bulwark.
At the same time, parents cannot allow themselves to be treated like a captive audience by their elected representatives. My mood shows that parents can and must take back their children's public schools, and that the First Amendment is one way to assist them in doing so. Thank you.
Speaker 5
Chairman Kyle, ranking member Bonamichi, and members of the committee. My name is Zalman Rothschild. I'm an assistant professor of law at the Cardozo School of Law. I'm also an ordained rabbi and have a PhD in Jewish studies. Thank you for the opportunity to testify.
Today, this hearing concerns an issue that has generated intense public attention. In Mahmoud v Taylor, the Supreme Court held that religious parents have a constitutional right to remove their children from public school instruction that conflicts with the religious values they seek to instill. The decision has been celebrated by many religious liberty advocates and by broader parental rights movements, as it is being celebrated this very morning. That celebration is misplaced. To understand why, it is necessary to situate Mahamud within a longer constitutional tradition, one that has governed for nearly a century.
That tradition did not deny the importance of parental authority or religious liberty, but it recognized the need for limiting principles. Mahmoud departs from that tradition, even as it presents itself as continuing it. I wanna highlight just two decisions from that tradition. Barnett decided in 1943, and Yoder decided in 1972. Both are often invoked as victories for parental and religious rights in education.
Both were far more limited. In Barnett, the court held that public schools could not compel Jehovah's Witness children or any children to salute the flag and recite the pledge of allegiance. Barnett drew a line between compelled affirmation and mere instruction. Schools could teach contested ideas, they just could not require students to profess them. Second, the court went out of its way to clarify that, quote, the issue, as we see it, does not turn on one's possession of particular religious views or the sincerity with which they are held.
Religion supplied the plaintiff's motive, but the constitutional violation was compelled speech, not a religious burden. This distinction mattered immensely. Because the injury was compelled speech, the remedy was to invalidate the policy across the board. Barnett did not create a system of individualized opt-outs. Yoda was also limited.
It exempted Amish parents from compulsory high school attendance, but only because enforcement threatened a cohesive religious community's very survival. The court stressed the collective nature of the risk. Compulsory schooling carried, quote, a very real threat of undermining the Amish community and religious practice as they exist today, end quote. The best reading of Yoder is that it reflected a pluralistic compromise. It protected a community's mechanism of cultural and religious transmission, while still expressing concern about children's later ability to exit that community.
It was not a general endorsement of parental opt-outs from public school instruction. For 80 years, courts uniformly applied these distinctions. Parents could choose either public or private education. Students could not be compelled to affirm beliefs, and religious communities could, in rare circumstances involving threats to their survival, obtain narrow exemptions from high school compulsory education laws. But parents had no general right to opt out of the public school curriculum simply because it conflicted with their values.
This consensus, it should be noted, was not invented by progressive courts. It emerged from decisions often associated with constitutional conservatism. Parental rights and religious liberty are part of America's constitutional history, and for good reason. But that tradition also embodies hard-earned judgments about how those values must coexist with others, including child welfare, public education, and public health. Barnett and Yoder represent the best of our constitutional tradition, a careful balance among parental liberty, state authority, and children's welfare.
They reflect wisdom about how to sustain religious pluralism without eviscerating public institutions. Mahmoud upends that settlement while pretending to preserve it. The celebration of Mahmoud by religious liberty and parental rights advocates may prove short-lived once the decision's logic is deployed by parents across the ideological spectrum, and once states lose the ability to ensure that all children receive basic education, health care, and protection. There is a reason the constitutional consensus held for nearly a century. The court seems to now be dismantling it without fully grappling with the wisdom it embodied, or the problems its destruction may create.
This deserves more careful consideration than it has received. Thank you. I look forward to your questions.
Speaker 1
Thank you very much. I'll, lastly, recognize Miss Partial Perry for your testimony.
Speaker 6
Chairman Kiley, ranking member Bonamici, and distinguished members of the subcommittee, good morning. As a legal scholar, a policy analyst, and a mother, the issue we're here today to discuss is near to my heart, and I commend the committee for holding this hearing. My mood wasn't simply an extraordinary case because of its well-reasoned holding and sound jurisprudence. It was extraordinary insofar as the petitioner's challenges were necessary at all. That their years-long efforts to opt their children out of questionable material pursuant to their free exercise rights even required the Supreme Court's deliberation is a grave condemnation on the state of American education writ large.
Rather than orienting public classrooms toward the urgent task of reversing the nation's flagging NAEP scores, indicating that only 22% of our high school seniors are numerate and only 35% are literate. Most schools seem content instead to educate for activism, social justice, and queer propaganda. Consider a few of our unearthed examples. In Lexington, Massachusetts, kindergarten students are subjected to a DEI curriculum that includes instruction on changing their bodies to fit their gender identity. In South Burlington, Vermont, the elementary school curriculum directs students to become active anti-racist with resources from the groups Reading is Resistance and Woke Kindergarten.
In Los Angeles, California, they offer a queer all-year school calendar, providing teachers and students with new LGBTQ resources every month, like Reading the Rainbow, a guide to literacy through a queer lens. Wauwatosa, Wisconsin. Public schools have instituted sex ed curriculum that teaches children as young as five about gender identity and eliminates the words men and women from the kindergarten lexicon. In Seattle, Washington, teachers are instructed to hide students' gender identity from their parents, making it more than 1,200 school districts now that we have identified similar deceptive policies. Post Mamoud, it also refuses to allow opt-outs from queer-themed curriculum for religious parents and has solicited supplies for a community health locker project, including chest binders, nipple guards, and tuck-friendly underwear.
Our organization has tracked thousands of incidents like these. They evidence the astonishing misconception under which many American schools operate, that the child is the mere creature of the state. But the Supreme Court, however, has held precisely the opposite more than 100 years ago in Pierce versus Society of Sisters when it struck down Oregon's compulsory public education law. Twenty years later, it reinforced Pierce in Prince versus Massachusetts, holding that the custody, care, and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state cannot supply or hinder. Yet again, in Wisconsin versus Yoder, the court hewed closely to precedent, determining that a parent's interest in the free exercise of religion outweighed the state's interest in compelling school attendance beyond eighth grade.
Mahmoud was the capstone in the court's parental rights and religious liberty canon, reinforcing the pre-political, natural, and ancient right of a parent to direct their child's upbringing. But the status notion that children belong to all of us, that schools, not parents, know better, is both intractable and persistent. Despite Mahmoud's unequivocal edict then, the battle for parental primacy is only just beginning. Thank you, and I welcome your questions.
Speaker 1
Thank you very much to all of our witnesses under committee rule nine. We will now question the witnesses under the five minute rule, and I'll first recognize the chairman of the full committee, mister Wahlberg, for five minutes.
Speaker 7
Thank you for your kindness on that, Mr. Chairman, and thank you to the witnesses for being here. As a parent who gave life to three children and as a grandparent who saw my kids give life to seven grandchildren, I appreciate the fact that we're talking about this issue because, frankly, it involves a very survival of the family itself and the primacy of parental responsibility, let alone rights. Not one school board member gave a life to my three kids. And in a time when we are about to see a rapid increase of lawsuits coming from transgender young people who have finally seen they were lied to. I'm hoping that Montgomery County schools will receive significant support in the process.
We need to remember as well that parents can't opt out of paying local public school taxes. That's the difference, Mister Rothschild, that we're talking about here. They can't opt out of paying for something that they strongly disagree with. Though they can leave the schools, they still pay the taxes. Mister Baxter, thank you for your work at the Supreme Court to defend the parents.
You're doing the Lord's work, truly the designer's work. It's been over six months since Mahmoud was decided. Have states been adjusting their policies to align with the court's decision in Mahmoud, or are states looking for ways to work around the court's decision? Thank you. I think it's important, Microphone.
Speaker 3
I think it's important to remember that school boards across the country have long had opt-out policies, including Montgomery County itself. It was only when this particular curriculum was introduced that the board withdrew the opt-outs. And so when Mister Rothschild asked, where will this all go? We're really this was an extreme outlier situation where this and there are other schools doing this, pushing an extreme ideology and then trying to block the parents. We're simply asking to maintain the status quo in Mamoud to allow parents to continue to make these decisions, especially on issues of gender and sexuality, where all 50 states require some kind of parental consent.
But there are some states that are continuing to buck the rule of the court.
Speaker 7
We'll have to be watching that carefully. Thank you, Mr. Dougherty. Christian parents have drawn a lot of attention in this case, but it wasn't just Christians who objected to what the Monroe, the Montgomery County public schools did. Can you talk about why parents from other faiths found the school system's policies so concerning?
Speaker 4
As a praxen Catholic, I know that tradition best, and I understand how it violates, you know, that tradition. But, certainly, as Mister Baxter knows, his clients included Muslims, Eastern Orthodox. I think there were some Jewish parents involved. So all the Abrahamic religions were represented. And I think, you know, just you look to, you know, scripture and things like that that show that these types of lessons that were being taught by the storybook series violate that.
And, again, as we talked about, some parents who were completely secular, not religious, they too objected thinking that, you know, my child and this started, like, with pre k and then kindergarten up to, k to five fifth grade, I should say, that these chill no children should be exposed to this kind of stuff at that young age. And the notion that the school board was trying to do so offended a lot of people, religious and even non-religious.
Speaker 7
Yeah. They could see it went against science and even common sense. Miss Partial Perry, you mentioned in your testimony, and I quote, that parental rights are prepolitical, ancient, and fundamental. I agree fully. Can you explain more what that means, and how these three pillars are essential to preventing government tyranny?
Speaker 6
Absolutely. These are connections that are rooted in biology, the very nature of the parent-child relationships, which predates not only government, but the constitution itself. In fact, some of the earliest writings that we see are from the 13th century. And Thomas Aquinas' Summa Theologica, in which he wrote about the nature of the parent-child relationship and how it is fundamental. It is that basic building block of all civilized societies, and it is something on which the Supreme Court first weighed in in 1923 in Meyer v. Nebraska, recognizing that this was a right that simply had to be found somewhere in the constitution because we knew it had always existed from time immemorial.
Speaker 7
We lose our country if these fundamental principles are broken down, starting with the family and the parents controlling their children for the best interests of our country. Thank you so much. I yield back, Mr. Chairman.
Speaker 8
Thank you, mister chairman. Mister Rothschild, is there anything in the Mahoot decision that would allow a parent or group of parents to veto information given to other children other than their own?
Speaker 5
Part of the problem with the decision in Mahmoud is how confusing it is. On the one hand, it presents itself as very narrow, an interpretation that was echoed by Mister Baxter. And the court goes on for about 10 pages explaining how indoctrinating these picture books were, suggesting that that would be the limiting principle. But then, somewhat cryptically, Justice Alito adds a paragraph at the very end saying, in any event, it doesn't matter. Essentially, everything that I just said doesn't matter.
And the only question is, does this interfere with the parents' ability to instill within their child their religious values or their religious beliefs? There's no endpoint to that.
Speaker 8
Well, but they can opt their own children out. Can they veto the material being shown presented to other children?
Speaker 8
Okay. Now to opt out, do you have to have a legitimate claim of religious liberty, or can you opt out for values or opinions? Like, I don't want climate change presented or not for religious purposes, but I just don't think LGBTQ material ought to be presented to that. It's just age-inappropriate. Do you have to have a legitimate claim of religious liberty?
Imamut is.
Speaker 8
Alito had some other information in there about a threat to religion. It can be contrary to your religion. Does it have to be a threat to your religion?
Speaker 5
Well, that language of a threat comes from Yoder, where the threat that the court is articulating in Yoder is a threat to the survival of this distinctive religious community, the Amish community in Wisconsin. So it somehow gets transported to opt-outs in public schools, even though Yoder is talking about opting out of compulsory education laws for two years, the ages of 14 to 16, under very specific circumstances. So the language of threat now is used in Mahmoud to suggest that so long as anything in the curriculum threatens the parents' ability to instill the parents' religious values in their children, that threat is constitutionally protected.
Speaker 8
Okay. Is there any consideration being given in this decision to the harm that may be inflicted on other children? When they see some of their classmates opting out, all of a sudden it puts a different view on the material they may be given. Is any consideration being given to the effect of all these opt-outs on the other children?
Speaker 5
The court gives no consideration to that. It just dismisses it out of hand. So one of the arguments that the board made was that there's inherent value in teaching inclusivity to children. And you can infer from that that it very much undermines the message of inclusivity when a group of students, you know, stand up and walk out. It's like a walkout, essentially, from that particular teaching.
And the Supreme Court was just extremely dismissive about that particular interest that the state had articulated.
Speaker 8
And finally, if you have a complaint about this, what agency in the federal government would you seek guidance from? Would it be the office of civil rights in the Department of Education?
Speaker 8
And, are you aware of what's happening to that agency being dismantled along with the rest of the department? Yes. Thank you, Mr. Chairman. Are you back?
Speaker 1
I will not recognize myself for five minutes. Mister Rothschild, thank you for being here to testify today. I just wanna get some clarity on your position. I mean, you disagree with the Mammood decision, clearly. Right?
Speaker 1
And so, nevertheless, it is the law of the land now. So what do you want the takeaway to be from your testimony today? What action would ideally you want to follow from it given that Mammood is the law?
Speaker 5
Well, to the extent that Congress is contemplating any legislation in the aftermath of Mahmoud, which itself would, I mean, somewhat be unconstitutional unless it's authorized by the Supreme Court. In other words, unless the Supreme Court has interpreted that into the Constitution itself. Mhmm. But to the extent that congress is contemplating going further than that, my point is that Mahmoud should be celebrated less than it seems to be celebrated.
Speaker 1
I see. So you kind of paint this picture of how, Mahmoud has unsettled this, you know, settled body of law, on this particular issue. But it is true that even prior to Mahmoud, schools across districts across the country do allow opt outs. Right?
Speaker 1
Right. But the existence of opt-outs is not inherently destabilizing in some sense, is it?
Speaker 5
There's no broad general constitutional basis for that. It should be a local decision made by the districts themselves.
Speaker 1
I see. So for the parents in Montgomery County who had very strong objections to content, what was their recourse in your view of the law?
Speaker 1
Democracy would be their recourse. Okay. And so, you don't think there are circumstances in which there might be rights that individuals hold, irrespective of what, you know, the overriding policy of their jurisdiction is?
Speaker 1
Mhmm. Yeah. I mean, I think that you just made an important concession, which is that you would leave parents without a recourse no matter how vile, no matter how, you know, discriminatory, the curriculum that is presented in their classroom. And I think that's a serious problem. And I think that you paint this decision as somehow some sort of rupture and jurisprudence or destabilizing.
But, actually, I think what's different now is the type of content that's coming into classrooms, and the fact that districts are refusing to provide opt-outs for that content. So, Mister Baxter, do you think that is an appropriate characterization?
Speaker 3
It's important to remember that American democracy is tempered by the bill of rights, protects the rights of individuals to live, consistent with their religious beliefs, their own speech. And, every you know, I had a spoke to a Washington Post reporter who had a similar view to mister Rothschild, but he wanted to object to his children, on issues that were concerning to him. And so every parent has their own opt-outs, and it's important to realize that Mahmoud protects the rights of all parents.
Speaker 1
Yeah. It's interesting. I thought he might say that the recourse is to go to private school, which is in fact what, you know, various briefs and the lawyers for the county argued. But there's a problem with that as a legitimate recourse for folks as well. Right?
Speaker 3
Right. Most parents can't realistically afford to send their children to private school or to homeschool them, as was the case of most of our clients.
Speaker 1
Yeah. It's ironic because, you know, there's this often opposition to school choice that exists among, you know, certain segments of the education establishment. But when it comes to those who have the means to enroll their child and to exercise that choice, they're all for it. Do you agree, Mr. Dougherty?
Speaker 4
Yeah. No. I mean, the notion that you have to choose between either raising your children in your faith or going to a public school, to me, that is an unconstitutional kind of choice. The notion that just, well, people can easily send their children to public or private schools, I should say, or homeschool them. To some extent, that to me is reminiscent of, you know, let them eat cake.
I mean, for example, just because, you know, you have these other ways of dealing with this, but those ways cost a lot of money, a lot of time, resources. So to me, it is kind of almost let them eat cake kind of choice for parents who object to things like occurred in Montgomery County.
Speaker 1
Yeah. What do you think, miss, partial Perry, about this idea that we should just be satisfied with the idea that parents have no recourse, no matter how, you know, vile or how controversial or how threatening to their fundamental values content in classrooms is?
Speaker 6
Well, that invokes the arguments that we heard in the colloquy with Justice Jackson during oral arguments in my mood when she herself talked about sending kids simply to private school. Private school is about 10% of American school kids. Nearly 90% of them go to public schools. It is a function of necessity for many parents. It was for my 3 children.
I have two sons who have disabilities who specifically benefit from the civil rights laws that are enforced through public education, and will continue to be. Regardless of the future of the Department of Education, they will be offloaded to other agencies per interagency agreement or congressional action. But it is, I think, a false choice to say you must participate in a mandatory tax scheme, but you also have to give up your religious liberty rights.
Speaker 1
Thank you very much. And I actually appreciate your sort of honesty, Mr. Rothschild. I'm just saying there is no recourse rather than pretending that there is some recourse. But I think that's an alarming thing for many parents who are concerned about what's going on in some of our schools. So, with that, I'll now recognize the ranking member.
Speaker 2
Thank you, chairman. And I wanna follow-up on this conversation because I was here listening, and mister Rothschild didn't say there was no recourse. He said there was a democracy. And I remember years ago in Oregon, the school board had made a decision that the majority of the residents of the district didn't support. So they ran candidates, and they changed the school board, and they changed the decision.
So that is democracy. So I don't wanna put words in mister Rothschild's mouth, but I don't want there to be a perception that there's no remedy because there is. Again, mister chairman, I wish we were here talking about the armed masked agents that are lurking outside of schools and the gun violence that students are experiencing. And, you know, we're here today because some people are claiming that their religious beliefs are threatened by some school lessons that may perhaps just acknowledge the existence of gay people. And to me, it's concerning.
I want students to learn critical thinking and know that their parents are involved in that, and I think that's really critical. But we do have an expert here on the intersection of religious belief. And I just wanna ask you, mister Rothschild, how did your Hasidic background and your rabbinical training shape your experiences and influence your understanding about the debate concerning Mammood?
Speaker 5
So I grew up in a Hasidic community, which in many ways was a really beautiful upbringing, childhood, and education. But it is also quite lacking, in particular, with respect to basic secular education. It's no secret that the Hasid community schools do not teach basics, including science, math, literacy. And so attending law school, I was particularly interested in understanding how it could be that a society would allow so many children, over 100,000 of them in New York alone, to be deprived of what is considered a basic right for every child.
Speaker 2
Thank you. I appreciate that very much and your insight and what you bring to the conversation. I wanna talk a little bit about the limiting principles that you're discussing. I know Pierce because I'm from Oregon as more than a century ago. But if you think about back in 1972 with the Wisconsin versus Yoder, where Yoder, where they address the free exercise of religion by the Amish, and, you know, there was discussion about that today.
Previous rulings had rejected the view that mere exposure to educational materials or ideas conflicts with the students' or parents' religious beliefs, and why that does not violate the free exercise clause. So how did Mahmood change that? What are the limiting principles that we're gonna need to be aware of?
Speaker 5
So on the one hand, Mahmoud seems to be suggesting there is a limiting principle, which is that it's fact dependent, case specific, that the courts would have to parse the curricula that's in dispute in Mahmoud's picture books for three to five year olds to determine whether that curricula is in any way indoctrinating. But like I said before, the court also walks that back at the very end, just sort of sneaks that in there by saying that in any event, those are the exact words. None of this matters. So if none of this matters, the ostensible limiting principle, which itself is not all that much of a limiting principle, because indoctrination isn't something that is objectively recognizable. One could argue that all of education is indoctrinating, or none of it is indoctrinating. I don't know how anybody could really tell the difference, but then the court seems to walk it back by saying, so long as there's an interference with the ability of parents to raise their children.
Speaker 2
So if there has to be some sort of fact-intensive analysis to determine if there's a threat and whether there's interference, how is that determined? And by whom? Could a Christian scientist say I don't want my child to learn anything about health or science and opt out of that? I mean, I just don't understand how this is going to work. Do you have any sense?
Speaker 5
I don't have a sense of how this will work, but I could imagine a whole host of very problematic scenarios, including, for example, say a teacher tries to teach the value of nondiscrimination against religion and specifies and says it's wrong to discriminate against Jews or against Muslims. And some parents have a problem with that because of their sincerely held religious beliefs, because, you know, chapter 16 of Mark says that those who are not baptized are condemned. So I have no idea how in any sense this can be bounded.
Speaker 2
I share your concern. And before concluding, mister chairman, I want to note that we have heard in this committee again and again about returning education to the states. But here we are using this hearing as an attempt to dictate what can and cannot be taught in schools. And we've heard countless times in the committee that it is not the federal government's role to interfere in local curriculum decisions. We should not be using our time and resources to perpetuate a culture that most American families don't want.
And I encourage my colleagues to select hearing topics that actually matter, like gun violence, trauma inflicted by ICE, and how dismantling the Department of Education affects schools and students. And, mister chairman, I do ask unanimous consent to enter into the record a letter from Americans United for separation of church and state on religion in public schools as well as Objection. As well as a scholarly article by Richard Katzy and Ira Lupo called Mahmoud versus Taylor cause or effect of disruptions in the public schools.
Speaker 9
Thank you. Thank you so much. As a dad of six kids and 18 grands, this makes my blood boil. I am not I cannot understand how we're sitting here talking about strangers to raise my kids. Now if you wanna know how this opt-out's gonna look, we got it.
It's called choice. And you're gonna see the mass opt-outting of programs like this. Three- and four-year-old kids being taught this sexual smut. And we're sitting here as adults thinking it's okay. I'll say this just to summarize, before I get into my questions.
We're seeing adults, grown people that have the power of having little children in their class that they cannot escape. They captured. Hiding from the parents the curriculum that they're going to teach no matter what the parents think or don't think. By the way, that's the way the communist and social work. If you wanna know how that looks, it's not hypothetical.
And then hiding behind unions so they won't get fired. I'll say two things about these kind of people. They're bullies and they're cowards, and I don't want them anywhere close to my kids. So I will be choosing to opt out. And my parents, my kids will be choosing, and my grandkids will be choosing opt-outs whenever we have a situation like this.
And I tell you what's gonna happen. The free market's gonna show itself in a big way. Schools like dishes like this will go out of business. We will not fund this anymore, and parents will not show up anymore. And schools out there that are doing the right thing, teaching your kids how to read, write, think, communicate, articulate, debate, and succeed, will prosper.
And we won't have to worry about going through this democracy mess that takes forever, as our kids being indoctrinated. Boy, I just cannot believe we're having this conversation with grown people. I just I don't get it. I just don't get it. Anyway, no.
I do get it. But, mister Dorothy, you mentioned that some parents objected to inappropriate teachings who had no religious faith. Well, I'm glad that the court protected the rights of these religious parents. I'm concerned about the school boards that still force nonreligious parents to have their kids indoctrinated. The written testimony quoted that Justice Koch, Kagan mentioned that probably a lot of nonreligious people who aren't really thrilled about this either.
How do you think courts will look at protecting rights of nonreligious parents?
Speaker 4
Well, as I think, Miss Perry noted, there's a case called Pierce that says that among other things, well, says that parents have parental rights under the Fourteenth Amendment substantive due process clause. And it says critically, creatures, let's say children, are not to creep near creatures of the state. That's very important. Children are they belong to their parents who have a duty to love them and raise them, and that's really where the first line of child development begins. The notion that now educational bureaucracies distrust parents and exclude them from decisions, that's gotten, I'm afraid, too far out of hand in this country.
And a case like, Mahmoud is a case, and then when they push back, I must disagree. I think there are limiting principles. I don't think this is going to be hard to deal with. As I mentioned in my testimony, in Montgomery County now, these issues are addressed by simple refrigerator magnets. Each semester, each student gets a refrigerator magnet that says what's gonna be taught, the books they're gonna be taught, and if those lessons violate sincerely held religious beliefs of parents, parents can opt out.
So I don't think this is any kind of difficult, you know, onerous problem for schools to deal with. If anything, I think schools, public schools, Pete public teacher unions overreach. They got perhaps a little ideologically arrogant, and this is a good way of pushing back on
Speaker 9
I think you said something. Just wanna make a point. It's called arrogance. The district argument was a parents' free exercise was not burdened because they could remain free to enroll their children in other private schools. Yeah.
That's pure arrogance. Well, guess what? It's coming. School choice allowed him to go to private, public, charter, homeschool, or parochial. You're gonna see a remarkable opt-out, and I'm really sorry about that.
Real quickly, mister Baxter, many opposed the lawsuit against the district believe that his parents should have engaged in the democratic process to make their voices heard rather than resorting to suing the school districts. Can you explain why the democratic process here is the wrong remedy?
Speaker 3
Parents did engage in the democratic process when we were called bigots, racists, and xenophobes. And this was a very diverse group of Americans of all religious and political stripes who just simply wanted to protect their children's education. And that's really what the First Amendment is for, to make sure that religious liberty of individual families is protected.
Speaker 9
My advice, for these folks who think this way, keep it up. You can find yourself out of a business, out of a job, because we're opting out of this mess, for sure. Thank you so much. Appreciate it. And I yield back.
Speaker 10
Thank you, mister chairman, and thank you to our witnesses for being here. The Supreme Court's decision in Mahmoud v. Taylor was narrow, but the conversation surrounding it has not been. There's a real risk that this ruling is used to blur a long standing constitutional line between protecting families from compelled belief and undermining the basic fun function of public education. Public schools do not exist to affirm any one worldview. They exist to prepare students to live in a diverse, pluralistic society.
That necessarily includes exposure to ideas that students and families may not agree with. So my questions today are about limits, about guardrails, and about making sure that we do not turn a narrow ruling into a broad mandate that destabilizes classrooms across the country. So let me turn to our witnesses, Mr. Rothschild. The Supreme Court has consistently distinguished between compelled speech or forced affirmation of belief on the one hand, and the ordinary work of public education, including civics education, that exposes students to differing ideas, excuse me, over time. In my view, did the court meaningfully engage with that distinction?
And going forward, how should courts understand the difference between unconstitutional coercion and the slow, noncoercive process of educating students in a democratic society?
Speaker 5
That last line of yours, I believe, is from Barnett, cited in 1943 by Justice Jackson, which was considered the quintessential statement on this very distinction that you're raising between your right to send your children to private school and that if your child is to attend a public school, that within public schools, there are some limits. So to go back to a question that Mister Kylie was asking me before, I think there are limits, and Barnett, for example, represents some of them. And lower courts since 1943, unanimously, have held to that distinction as well. Mahmoud disrupts it.
Speaker 10
Okay. So do you see a risk that Mahmoud could be misinterpreted to treat mere exposure to ideas as constitutionally suspect even when no student is required to affirm or adopt those ideas?
Speaker 10
While Mamoud was framed as a narrow ruling, it raises broader questions about who gets to decide what is fundamentally necessary to teach children. So what concerns you about courts or congress stepping too far into curriculum decisions traditionally made by educators and local communities? And would a federal opt-out law risk replacing professional education, educational judgment with litigation-driven oversight?
Speaker 5
Much better than I can ever articulate this. Let me just quote to you Justice Jackson, the author of Barnett, in his concurrence in McCollum in 1948. He said, if we are to eliminate everything that is objectionable to any of these warring sects or inconsistent with any of their doctrines, we will leave public education in shreds. Nothing but educational confusion and a discrediting of the public school system can result from subjecting it to constant lawsuits. Now maybe that's the point.
Speaker 10
Yeah. Maybe so. So, in your view, which institutions are best suited to set these boundaries in a way that protects religious liberty without eroding the mission of public education: local school boards, educators, states, or federal lawmakers? Which one of those?
Speaker 5
I mean, it has long been recognized that, if there's any area where democracy is terrain, it's with respect to local government, and there's nothing perhaps more local than boards of education in educational districts. Again, to quote from Brown v. Board of Education, education is perhaps the most important function of state and local governments.
Speaker 1
Pursuant to the previous order, the chair declares the committee in recess, subject to the call of the chair. We'll plan to reconvene promptly in 5 minutes. Thank you. The committee now stands in recess.
Speaker 1
Committee is back in order. Representative Miller of Illinois is recognized.
Speaker 11
Thank you, Mr. Chairman. Parents have the God-given right to raise their children, especially when it comes to educating them in accordance with their faith. This fundamental freedom includes the right to know what their children are being taught in school. These foundational rights are reinforced by federal legislation through the Family Educational Rights and Privacy Act, FERPA, and the Protection of Pupil Rights Amendment, PPRA. The bottom line, parental consent is integral to our educational framework.
Schools cannot conceal student information from a parent. Schools must recognize this reality. But it comes as no surprise that Democrats want to take away parental rights in education. When parents voice concerns about what their children were being taught during the pandemic, Joe Biden's Department of Justice labeled them domestic terrorists. Last year, parents in Montgomery County, Maryland scored a monumental victory when the Supreme Court reaffirmed what we already knew to be true: parents control their children's education.
However, many school districts continue to circumvent the Supreme Court's ruling, including my home state of Illinois. For example, Chicago Public Schools featured a sex education curriculum beginning in kindergarten. In the first grade, there were lessons on how to define gender identity. In second grade, students were taught the concept of gender stereotypes and how to advocate for change. In fourth grade, the district curriculum utilized a gender snowperson to help students explore the concepts of gender identity, sexual orientation, sex assigned at birth, and gender expression.
By fifth grade, there was an introduction to puberty blockers, and students were forced to read Gender Unicorn, learning about sexual orientation and other concepts like gender role stereotypes and gender expression. Students were even expected to define terms like cisgender, nonbinary, and transgender. Last year's victory in the Mammoth case means it's time for these schools to fall in line. My first question is to Mr. Baxter. In your written testimony, you mentioned the role of Congress in protecting parental rights and education, particularly through FERPA and PPRA.
Do these laws, as written, sufficiently protect parental rights, or are further protections needed?
Speaker 3
They are often ignored by many school districts, and even the Supreme Court's ruling is ignored by many school districts. So I think Congress's attention to this issue and using its funding mechanisms can be an effective way to protect the rights of parents.
Speaker 11
Thank you. What about when schools manipulate FERPA and call it educational outreach, when they send student data to left-wing voter registration organizations.
Speaker 3
It's a little bit out of my expertise. I am here to testify on the religious liberty aspects, but, hopefully, under all of these laws, schools will ensure that all students are treated equally regardless of their religion or irreligion. All students deserve an equal opportunity to be educated.
Speaker 11
Yes. And to have their privacy respected, and we are on that. My next question is to Missus Partial Perry. In your written testimony, you mentioned Justice Kennedy's attempt to assuage concerns of religious freedom violations in light of the Supreme Court's Obergefell ruling. Could you please explain how this ruling was an affront to religious freedom and has set off a domino effect of violations, including the Mammood case?
Speaker 6
Yes. In fact, Justice Alito himself, in his excoriating dissent to the Obergefell decision in 2015, actually responded to Justice Kennedy's majority opinion and said, this is going to be utilized to stamp out every vestige of religious dissent. And in fact, his words proved to be true. In fact, the Mammu decision was made necessary because of individual decisions like the Obergefell decision. Now we can talk about whether or not it is bad jurisprudence, which I think it is.
It divined a constitutional right to same-sex marriage from the same shadowy ether of the Fourteenth Amendment that the court did in Roe versus Wade, and that has been subsequently overturned. And then we can talk about it as a policy-prescriptive matter. But I think the fallout is something we cannot ignore. And in fact, as we've seen, sort of cultural institutions be overtaken by progressive orthodoxy. We find parents, good, noble, honest parents, who simply want their children educated in the crosshairs of a culture war they did not start.
Speaker 12
You, mister chair. It would seem that the issue isn't that parents have a right to raise their children. I think the issue is that a certain parent doesn't have the right to raise somebody else's child. You don't get to determine for other children what religious beliefs they get to be exposed to in their schools. And it just feels to me that Republicans and conservatives are always feigning outrage about the wrong things.
For instance, right now as we are attempting to make it harder for children to receive a holistic education, American children are falling behind, by every metric on the global scale. While kids are behind in reading, conservatives are busy trying to make sure that they can't read a story about a little girl who adores her uncle who's getting married. That is the most recent outrage. Reading is a crucial part of how children learn about themselves and how much they have in common with others. That's how they learn about the world.
Not only do kids deserve to see themselves reflected in books and the curriculum, but they perform better when they do. The reality is that this is just another right wing attempt couched in parents' rights, to shield children from getting a real education. Everything this administration and the right-wing movement does is a blatant attempt to make us less educated, more narrow-minded, and easier to control. This has a massive impact on our ability to function as a society, let alone to compete internationally. Right now, we are not a country that people are taking seriously.
Today, it's about exploiting religious exemptions to shield children from the reality of queer people existing. But other times, it's been trying to shield children from the reality of black history lessons, and how black history is American history or indigenous studies or various languages, as we've seen through the outrage of Bat Bunny performing at the Olympics. It's always centered in bigotry and xenophobia. It is suffocating our country. Mister Rothschild, First Amendment doctrine has shifted dramatically in the last few years due to President Trump's appointments to the Supreme Court.
Do you expect we will continue seeing religious freedom weaponized to justify censorship in schools? And how do you believe this will impact public education in our country?
Speaker 5
Thank you for the question. Religious liberty jurisprudence has expanded drastically, under Trump, under the Trump's administration, and his appointments to the Supreme Court. So, for example, during the pandemic, the Supreme Court interpreted the meaning of religious discrimination under the free exercise clause in exceptionally expansive ways, such that, basically, any law that doesn't provide an exemption for religion is discrimination against religion. Most recently, it's Mahamoud, where the focus is not on religious discrimination, although there are vestiges of that in Justice Alito's opinion too, where he frames the lack of opt outs and the teaching, or the reading, rather, of these picture books as hostility, as explicit hostility towards religion. So, essentially, anything can be framed as discrimination against religion.
But, technically speaking, Mahmoud is a religious liberty case, not a religious discrimination case.
Speaker 12
So conservatives are also hoping that cases like Mahmoud versus Taylor will cause already under resourced public schools to preemptively censor curriculums to avoid costly lawsuits from a vocal minority. We're already seeing this happen. Right? A RAND study found that teachers are preemptively whitewashing curricula following the manufactured moral panic against critical race theory. In Justice Alito's ruling in Mahmoud v. Taylor, he said not allowing parents to opt out imposes a hostile environment, as you mentioned.
Do you believe that this ruling could also create a hostile environment for LGBTQ plus children or other marginalized children in the same vein?
Speaker 5
Yeah. I mean, I could just imagine, and this was argued in Mahmoud that if you allow for opt outs, it's not only about the administrability of the opt outs. And one of the concerns that the board had in Mahamoud was the influx of requests for opt outs once these children books were introduced into the curriculum. It's not just administrability. It's also the messaging that is sent when children are allowed to walk out of the classroom as soon as teachings about inclusivity of other children is implemented.
Speaker 12
Thank you. Conservatives are exploiting religious freedom to suppress other constitutional rights, like the separation of church and state, or equal protection. Our duty to religious freedom does not absolve us of a duty to protect marginalized groups from environments that condemn our existence. I wanna end with the important point that despite this administration's best efforts, inclusive educational materials are still illegal in this country. I welcome a hearing about the decision in American Federation of Teachers et al.
Vers US Department of Education et al. That struck down the department's guidance against diversity, equity, inclusion, and accessibility. And I stand with all the educators, students, and families navigating the bigotry and xenophobia of this administration. We are working to ensure that children feel included, accepted, and safe, and have the opportunity to become educated global citizens. I yield back.
Speaker 13
Thank you, mister chairman, and thank you to all of you that are serving on this panel today, and for your testimonies. I found myself, just overwhelmed at times in reading their testimonies and, to see how all of this played out, there in Montgomery County. And, I wanna just talk for a moment that one of the things that overwhelmed me was just kind of the attack or the villainization of parents that seemed to be working from the board's perspective. And, Mister Dougherty, your testimony mentioned that MCPS was incredibly hostile to parents who had legitimate religious concerns about the curriculum. In fact, you quoted one board member who suggested that if the parents were right, the board would have to, quote, send out notices so white supremacists could opt out of civil rights contests, end quote.
I find that absurd. And the board should be ashamed of themselves for comparing Muslims and Christians to white supremacists. So, mister Daughter, I just wanna ask you if you could take a moment just to give us your perspective about that comparison.
Speaker 4
Yeah. I mean, again, as I, as I said earlier, I think one of the things Mahmoud revealed is how disconnected public schools are from the students and the parents and the families that they serve. The notion that that Jewish families, Muslim families, Christian families, Ethiopian Orthodox are white supremacists or can be even be equated to white supremacists.
Speaker 4
That's insulting as anything. I mean, that making that kind of extreme analysis or analogy just shows how out of touch they were. And, you know, again, I think this is a problem in Montgomery County. Hopefully, it's been resolved after they lost the lawsuit. But, you know, the notion that this storybook series was necessary to, I think they said, disrupt heteronormative thinking and, which, you know, it seems to be something that I don't know why kindergartners need to be able to have that sort of thinking disrupted in order to learn to read and write and do mathematics.
So, yeah, it really was kind of scary how the school board shows this is the hill they were going to die on. Luckily, they lost, but it revealed a lot about what their priorities are, and it's certainly not serving the families that are in their county.
Speaker 13
Thank you, sir. Miss Parshall Perry, there's been a lot of conversation today about inappropriate content in this hearing. But I think many people really don't realize how deeply inappropriate it was. In fact, some of the left have characterized these teachings too often as lessons in mere tolerance or lessons in mere understanding, and I think that is horrifically misleading. Would you take a moment just to share how inappropriate this content was?
Speaker 6
This centered on five LGBTQ-themed storybooks for children as young as three and up. So, again, we need to view this from the perspective of the diminished capacity of minors. This was very distinctly designed to change perspectives. And in the colloquy with Alan Schonfeld, who was the attorney for MCPS, and Justice Alito, he said, why don't you just come out and say exactly what you want to say? You're trying to change minds.
You have a distinct perspective on these things you were trying to institute in minors' minds. Two of the storybooks, not only Uncle Bobby's Wedding, but Pride Puppy, addressed nonbinary individuals, drag queens, and pride parades. These are individuals who don't have a concept of their own identity as it relates to whether or not they want to be a fireperson or a fairy when they grow up. What we're dealing with is a designed attempt to change minds on perspectives. And I would harken back to what Congresswoman Lee said earlier, which is there are a number of very primary considerations in American education.
Our biggest threat is the fact our children cannot read or do arithmetic, and there is a reason Harvard now offers a remedial math class. If we divest this kind of curriculum from public education, our children will succeed.
Speaker 13
Thank you, ma'am. And, real quickly, in the last forty seconds. Mister Daugherty, you mentioned it in your written testimony about parents asking for opt outs, and that was brought up earlier. And it's fairly common across the country for schools to allow parents to opt out. So the Maryland parents really weren't asking for a radical new policy.
But can you talk for the last 20 seconds about the kinds of teachings parents can often opt out from both at MCPS and in general?
Speaker 4
47 of 50 states allow parents by statutory right to opt out of classes on human sexuality, family life, including Maryland. Now in Maryland, just showing you, frankly, the disingenuousness of the board here, they didn't classify this storybook series as human sexuality because that would have meant the parents had the statutory right to opt out. Instead, they said it was part of English and language arts, which, to me, seems silly. I mean, again, I think most of the people in this room were able to learn to read and write and do math without having their heteronormative, normative things disrupted. So I think it was slippery, evasive, just and disingenuous not to say this is a human sexuality part of the curriculum, in which case there were no statutory rights under Maryland law and most other states where the parents opt out.
Speaker 14
Thank you, and thank you to our witnesses for being here. But I'm having a really hard time following along with this hearing because terms like school board and district are being used in the abstract. Where I'm from, the school board is composed of local members of the community who are elected to serve on the boards. And in the state of Connecticut, we have our curriculum framework comes from the state, which says these are the topics that have to be taught. And then at the local level, curriculum committees, local curriculum committees decide how we will teach those.
In my district, a local curriculum committee, I should probably add that I'm not talking about this in a hypothetical way. I taught in my school district, was the head of many curriculum committees, was the Connecticut Teacher of the Year, and was the National Teacher of the Year. I look back at my notes to see how the last eight curriculum committees I served on were composed, and they were subject matter teachers, technology coordinators, special education teachers, administrators, parent representatives always on these curriculum committees, students, and community members who decided not only what the curriculum would entail, but how it would be taught. One step further, as a teacher, every week I had to turn in my actual lesson plans of what I was going to do Monday through Friday in my class. Those lesson plans were posted on ParentSquare.
Parents had the ability to view them, and we always had an opt out policy. I actually believe that parents should have the ability to opt their children out of a lesson that they feel is offensive, or, I'm sorry. I don't find it offensive, but it goes against their religious beliefs. I also, however, am a mother who had all of my children formally and currently go through a public school system. I think that I am a good, noble, honest parent, and I want my children to learn lessons about kindness and inclusivity, and do not object to queer subject matter.
So I think that the rights of those parents, parents like me, should also be respected to have their children learn about their neighbors and people in their community. And while I agree that math and reading are very important, I also, and let me just say this. I want my children not only to learn about those things, but then come home and have conversations about what this looks like in our community because they will be living alongside people who they may not agree with, who have different lifestyles, who make different choices than them. And I am equally concerned about them learning reading and algebra as I am about producing conscientious, good adults who are not racist or xenophobic or homophobic or bullies in their community. So as a parent, I want my child to be exposed to all of the information so that they can make the most informed decision.
So I guess my question is, mister Rasha, I'm gonna come to you. Is Congress the body that is best suited to make these curriculum decisions? Because every committee, every hearing, every conversation, every quote, every statement that comes out of the other side is about these things should be made locally. And now we're here today saying that a local board of education made up of local representatives, a local curriculum that chooses their curriculum materials that people can challenge. If they don't like the decisions that come out of this board, they can elect new people to the board and change it.
And now we're saying that those people still shouldn't be able to make decisions on behalf of the children in their community. Mister Rochtal, should that be something that Congress does?
Speaker 5
Again, I think the Supreme Court worded it a lot better than I could ever word it. And so in Milliken's v Bradley, this is what the Supreme Court had to say. No single tradition in public education is more deeply rooted than local control over the operation of schools. Local control over the educational process affords citizens an opportunity to participate in decision making, permits the structuring of school programs to fit local needs, and encourages experimentation, innovation, and a healthy competition for educational excellence. That's a quote from a previous Supreme Court decision within the Supreme Court decision.
Speaker 14
I just wanna say, I mean, I have members of my own family who identify as gay. I have people in the community who I look up to, who identify as gay, and I want my children to know that those individuals are not abominations. Those individuals are not indoctrinated to care about people being able to live their life in the way that they choose. And, again, the fact that this committee is doing this, you know, I'm a teacher. I also represent Newtown Sandy Hook.
We have yet to have one hearing on the school shooting. So if you wanna protect children from the things that help them thrive in school, I would suggest that we start with that. I yield back.
Speaker 15
Thank you, mister chairman, and thank you to our witnesses for joining us here today. Mister Baxter, you mentioned in your testimony the congressional amicus brief that was submitted to the Supreme Court, in the moment versus Taylor. I joined my college in both colleges in both chambers in signing under this brief, which challenged policies that compel students to participate in instruction that may conflict with their religious values and infringe on the First Amendment protections. Can you explain how this brief impacted the final decision made by the court?
Speaker 3
Thank you, mister Messmer, and all who joined the brief. It was a critical brief cited by the court, showing that there are in the public schools today children being opted in and out of the classroom all the time for learning English as a second language, for individualized education plans. And it's no additional burden to respect the few parents who have religious objections and want to opt their children out of one hour of curriculum.
Speaker 15
Thank you. Thank you. And I was pleased that the Supreme Court decided to let parents make important decisions about what their children are exposed to in public schools, especially when it involves ideology that violates the family's religious beliefs. Mister Dougherty, for any school district watching this hearing, what advice would you give them on how to protect parental rights and religious liberty in the wake of Mumad?
Speaker 4
Well, certainly, again, already Montgomery County has figured out how to deal with it with the refrigerator magnets that they get every semester telling parents what's gonna be taught in the following semester. I think transparency in curriculum is gonna be key going forward. The ability to opt your children out of certain lesson plans that you object to or that conflict with your religious beliefs, that means nothing unless you know when that's going to be coming. You know, you have noticed. So I think through use of web-based tools and even refrigerator manic magnets.
I think that schools can and will, and must be more vigilant about letting parents know exactly what their kids are going to be taught so that they can then exercise their opt-out right. And, obviously, Montgomery County having lost this lawsuit, I think that shows an incentive that you don't wanna be on the wrong side of that decision going forward.
Speaker 15
Thank you. Miss Parshaw Perry, many people think that children are merely creatures of the state. Many commentators are outraged by the Muamau decision and argued that school boards should have absolute control over what their children learn. Can you explain why that world worldview is so dangerous?
Speaker 6
It's not only dangerous, it's judicially inaccurate. In fact, the Supreme Court held precisely the opposite in Pierce versus Society of Sisters in 1925. We have year after year of Supreme Court jurisprudence reinforcing, underlining the importance and the fundamental nature of the parental right. What we've seen over and over again in school districts across the country is a sort of misapprehension, a miscomprehension of the fact that these children are in very temporary roles under the school leadership. The school operates in a tutelary custodial pass capacity for a very brief period of a few hours per day, only to instruct, not to indoctrinate.
And then those children go back home, where they are under the care and primary authority of their parents. In fact, as recently as 2012, the Supreme Court has written about the diminished capacity of minors, indicating precisely that parents act in the best interest of their children because minors lack the appropriate intelligence, emotional maturity, or understanding of the world around them to be able to make some of these important decisions. That is why the Mammood decision was necessary in the first place, because many of these children, three, four, five, were too young to know what the concepts were that they were actually being taught.
Speaker 15
Thank you. And, mister chairman, I yield back the remainder of my time.
Speaker 16
Thank you, Mr. Chair. Today, we're not only discussing a flawed Supreme Court decision, but also a much larger agenda. My colleagues on the other side continue to mischaracterize what's happening in our classrooms, and I believe it's a major disservice to our students and teachers to put them at the center of these cruel culture wars. The statements made by my Republican colleagues in this committee make it clear that they view Mamoud case as just the beginning, opening the door for more sweeping opt outs from school curricula. As a former teacher, I can tell you where I stood and what I've always fought for.
Like my colleagues, I believe it's critical for parents to be involved in their children's education, and they are. Parents have more access to teachers, school boards, administrators than ever before, with online curricula, emails, livestream school board meetings, and beyond. That was my experience, and parents should be involved. And how public education has improved is to make sure that access continues to increase, and I believe that it will. I've made that case before in this committee, including to Secretary McMahon, that parents have more access and more visibility in their students' education than in the past, and that's a good thing.
But I don't believe we should go down the slippery slope of having parents opt their kids out of any topic they don't agree with or object to. Our public schools reflect our communities and the diversity of people and ideas within them. All curricula should be age-appropriate, and parents have access to administrators and teachers. Whenever I, in the thirty years of my classroom, saw other teachers that may have put things into the lessons that were not appropriate, that was addressed immediately and often preemptively, as teachers, as my colleague representative Hayes said, have to hand in their lesson plans and syllabi ahead of time. So we can't hide our kids from the world around them or prevent them from engaging with different ideas or different people.
I also believe that our teachers and school administrators know their students well and should be trusted and should continue to be accessible, that they do have our students' best interests at heart. Despite claiming to talk about local control and education and caring about that, this administration has made multiple attempts to target specific content and place new politically motivated demands on our schools. They've also weaponized funding, which is hurting all students. Just because a state may be represented by a Democrat or a Republican doesn't mean that all of those students or parents or teachers are Democrats or Republicans. So, unfortunately, weaponizing and canceling grants is hurting our students, hurting our schools, increasing class sizes, and disrupting budgets. Our schools should always be inclusive places, and religious beliefs should always be respected.
But I worry about the political and legal attempts to broaden the scope of the Mammoth ruling and the implications of far-reaching opt-out policies. Mister Rochal, my question is for you. Is mere exposure to educational content that parents might find religiously objectionable enough to trigger an opt out under Mahmoud?
Speaker 16
A follow-up question. From the ruling of Mahmoud, do you believe that parents have the ability to opt out of a high school unit on evolution?
Speaker 16
And do you agree that a parent should be able to opt their child out of evolution as a unit?
Speaker 16
No. Miss Partial Perry, do you believe that parents should be able to opt out of a unit on evolution?
Speaker 6
The Supreme Court's already addressed the issue and actually said there is no opt-out right for particular scientific perspectives. And in fact, in the wake of the Civil Rights Act enactment and desegregation efforts, both of those periods of time in American history, the Supreme Court routinely struck down so-called religious objections to, for example, desegregation laws. They know when they can smell a rat. They've done so for many years, and they will continue to do so now. These were very honest religious objections to inappropriate material.
The court will continue to apply that interpretation going forward.
Speaker 16
Understood. So it sounds as though your answer is that evolution would not be able to be opted out of because it is accepted science, and therefore, a religious objection to it would not be permissible.
Speaker 6
It is a scientific perspective. Absolutely. It is generally included in scientific classes for which there is no constitutional or statutory opt-out right. There may be religious objections. Those can be raised individually, but the Supreme Court has already addressed the question of evolution in public education.
Speaker 17
Well, thank you, chairman. Nobody knows their child better than a parent. Not a teacher. It's the parent. Parents have a God-given right to know what their children are being taught in schools.
In Ohio, we protect that right. Parents can review any material that includes, specifically, sexual content and excuse that child in Ohio from that being taught. Being a school board member for many years, when I heard about the violation of parents' rights in Maryland and that being stripped away from the parent, it just totally made me sick. These schools force children to view, and here's the key words here, here's the sweet spot, sexually explicit material of children under the age of 18, and threaten them with legal action against a parent who would fight back, who would even question it. In this particular subject, we have Muslims America, Christian, and Jewish America uniting for transparency in our school districts.
None of us want sexual content for minors being taught in school. That is unacceptable. So the question would roll out to Mr. Dockery. You said there were 47 states. Can you elaborate on the three states that chose to take away the opt-out option for the parents?
Some of these school districts have been threatening, and here's another keyword for you, truancy against the child and the parent for opting out of their kids being taught sexual content for being under the age of 18. I don't know what kind of upside down world we're living in where it's okay to teach sexual orientated material to kids 18. So, mister Dougherty, a two-part question. The first one going to those three states, and then another one for all of us on the board, including my honorable friends on the other side of the aisle. Is there some guardrails that Congress could actually do to make a better system so we could teach all material, but not material that's illegal for minors?
Speaker 4
Sure. Unfortunately, I haven't I did my research, many months ago, so I can't recall the four three states that don't. And I think, but even those states, I think, informally, it's recognized that if you really want your children not to participate in certain things that are highly controversial, offend your religious beliefs, I think that's commonly recognized. And, again, it was recognized in Maryland, but they said, well, this isn't about human sexuality. It's about learning to read.
So you have to read Pride Puppy in order to read, which seems to be a bit of a stretch here. So with regard to what Congress can do, I mean, Congress, there's obviously discussion right now about the Department of Education, what's gonna be happening with regard to that. Department of Creation is a creature of congress. Congress created it back in 1979, and what will happen with it going forward remains to be seen. Specific guardrails, I think, you know, again, I think the United States constitution, the bill of rights here, is a tremendous guardrail, and, you know, doesn't waiver, and I think it was one that the parents were able to take advantage of.
I would say also that parents and voters do need to be careful about who's on their school board sometimes. It's my understanding. Mister Baxter may know better, but some of the board members, who stood up for this principal back, when the case was started are no longer on the school board. But, you know, I haven't really given any thought specifically to what the federal government can do about this.
Speaker 6
I can weigh in. We heard earlier about whether or not the officer civil rights was the appropriate venue to be able to actually bring these challenges to. It is not. Having served as senior counsel in the US Department of Education in the office for civil rights, I can say specifically they enforce and apply civil rights law, not constitutional law. These parents exhausted every administrative level of opportunity closest to where these actual decisions were being made.
They were routinely struck down. The Montgomery County public school system stonewalled them at every attempt. The federal courts were their final recourse. The department of education does not have any authority whatsoever when it comes to the First Amendment.
Speaker 6
We have current existing spending clause laws, like the Elementary and Secondary Education Act, that might provide a vehicle to be able to legislate in such a way that decisions like this don't come up again through the federal court system. Obviously, the constitution conceives of specific enumerated rights for this chamber, and one of those is spending clauselet legislation. And there is quite a number of it that has actually been passed through these chambers, that might provide an opportunity to say we're going to enforce the parental right as we've done with FERPA, as we've done with PPRA. Those are suitable mechanisms, I think, going forward.
Speaker 17
Well, thank you all for your time. And with that, I yield my time back to the chair.
Speaker 18
Thank you, Mr. Chairman. Before coming to Congress, I served 20 years on a school governing board in Southern Arizona, one of the largest, most diverse districts in the state. I work directly with parents, teachers, and students every day. I know firsthand how critical parent engagement is to student success. But I also learned something else, just as important.
Public schools exist to serve all students. They are not vehicles for political agendas, nor are there spaces where perspectives can be erased simply because they make some uncomfortable. The Supreme Court's decision, Mahud v. Taylor, was narrow. It does not give politicians permission to micromanage classrooms, override professional educators, or turn public schools into the latest front in a culture war. Framing this federal overreach as consistent with returning education to the states is plainly contradictory to the majority's own stated agenda.
Federal government overreach is the opposite of local control. At the same time, we cannot ignore the broader context. Instead of investing in students and strengthening public education, some are pushing to dismantle the Department of Education and privatize our public school system. These efforts cannot empower families. They exacerbate existing inequalities, weaken accountability, and put our most vulnerable students at greater risk of being left behind.
Our responsibility is clear. We must ensure students learn in safe, welcoming, well-funded schools where curiosity is encouraged, facts are taught honestly, educators are respected, and every child has a real opportunity to succeed. This, my question will be to Mr. Rothschild. Is there a limiting principle in Mahud? Are we on a slippery slope where schools will find themselves overwhelmed with opt outs that the curriculum will be erased to the lowest common denominator as to what is taught.
Speaker 5
I think that concern that you have voiced is a legitimate one, and is one that was articulated by none other than justice Alito in 2021, wherein a concurrence in, Mahanoi, which involves social media and free speech for children, for students, he said the following. He said parents are not required to enroll their children in a public school. They can select a private school, and they may also be able to educate their children at home. By enrolling a child in a public school, he went on to say, the parents have impliedly consented to delegating some of their parental authority to the public school.
Speaker 18
Thank you. What are the failures of the Mahmoud decision, in your opinion? What did the majority opinion get wrong?
Speaker 5
Well, the majority opinion essentially rewrote previous precedents, claiming that it was just applying them. It restructured the way religious liberty works, even in prior eras, which the Supreme Court has claimed it is simply resurrecting. Religious liberty has classically meant that if an individual has an opposition to doing or not doing something that is required of them by the government, they can invoke the Free Exercise Clause. But here, the right, as it is framed by Justice Alito and Mahmoud, is a right to unfettered control over the moral shaping of your child even when you have opted to send your child to a public school.
Speaker 18
What I think is really interesting is that every school district has its own governing board that is duly elected. Those decisions should be made by those that are elected from the community. My concern, and one that I've, you know, pondered quite a few times while I've been in this room, is that the Republican Party, from what I understand, is the party that wants things to go back to the local level. But then when it's something that's an inconvenient truth, we tend to stick our nose in and try to rewrite federal. I wanna continue to support our duly locally elected school districts to make decisions about the school curriculum.
Every single curriculum that is taught in our public schools is open in Arizona to anyone who wants to, and they have the option to opt out. And we should continue to push those kinds of initiatives. Thank you, and I yield back.
Speaker 1
Thank you very much. And I'll now recognize the ranking member for our closing statement.
Speaker 2
Thank you very much, mister chairman, and thank you to the witnesses, for the testimony today. You know, this subcommittee is responsible for and should be comprehensively addressing the real issues affecting K-12 schools and protecting our children's future. But instead of addressing the actual dangers to students, my colleagues on the other side of the aisle have chosen to turn classrooms into the epicenter of a culture war. I noted, mister Dougherty just said that it's his understanding that the Maryland's Montgomery County Maryland school board members aren't there anymore. Well, you know what happened yesterday in Montgomery County?
A 16-year-old student was shot in his school. You can't solve that with a refrigerator magnet. The supreme court decision in Mahmoud versus Taylor has opened yet another avenue for Republicans to attack public education to the detriment of students and families. No one is arguing that parents should be involved in their children's education. On the contrary, we recognize that family involvement is critical to a child's development and educational success.
But by turning what is taught in the classroom into a political issue and improperly a federal issue, Republicans are using our children's future as a weapon to deepen partisan divides and threaten the foundations of our public education system. My Democratic colleagues and I will not support politicizing education. We will continue to work with students, with parents, with educators, and with communities until every student receives an accurate, high-quality, age-appropriate education in a safe, well-funded environment without fear of gun violence or masked federal agents breaking down the classrooms. Education that engages them, inspires them, and leads them to be creative, tolerant, critical thinkers, who are compassionate members of their community and our country. And I yield back the balance of my time.
Speaker 1
Thank you very much. Thank you to all of our witnesses. I think a major takeaway for me from this hearing is that the position of the opposition here is that there is no recourse for the parents. That's an exact quote from their chosen witness, which I find to be very troubling. This idea that, you know, kids as young as kindergarten could be exposed to the most graphic content, and the parents have no recourse.
They're not allowed to pull their child out, even for a day. That a school could inculcate values that are wholly incompatible with the religious upbringing that the parent has chosen for the child, and there is no recourse. They can't let them sit out even a day of class. So I think that the opinion of the Supreme Court in Mahmoud simply affirms common sense foundational principles in this country. And this isn't about controlling the curriculum at the federal level.
When a parent opts out, the curriculum stays the same. The other students who choose to participate, their families can be exposed to whatever curriculum is chosen at the local level. It certainly isn't about undermining local control either. I believe very strongly in local control when it comes to education. But at the same time, there are basic constitutional rules of the road that all institutions must abide by.
And what the Supreme Court has recognized is that religious liberty is one of them, and the right of parents to direct the upbringing of children is intricately bound up in that. So I think this is a very important decision, and this committee will be assuring that it is honored and respected so that the rights of parents are respected throughout the country. What objection is there being no further business? The committee stands adjourned.
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