Justice Alito’s “Review of Books”

I was not expecting much from the Supreme Court’s election to immerse itself into classroom teaching. But I was hoping for something more than today’s Mamhoud v. Taylor. In the end, the majority decided to review books they didn’t like and to allow parents to tell their kids they don’t need to sit in a classroom and learn about things that offend the religious senisbilities of the parents.

Realize this is a court looking for work. This case was reviewed based on a preliminary injunction. The purpose of quia timet relief is to prevent irreparable harm while the court develops a complete record from which it can make a considered decision. I never thought that reading a book could cause irreparable harm but I guess I stand corrected. Ukranian Orthodox, Catholic and Muslim families apparently do sustain such harm when their children are compelled to sit in classrooms where books are read that promote acceptance of LGBTQ+ people and their lifestyles.

From those parts of the books quoted and a generalized description of how its taught, I am no fan of this approach to teaching.  The books appear to try to “promote” acceptance of these lifestyles. While these views are not mine, I can understand that these lifestyles are inimical to what many people view as moral conduct. But in the society in which our founders adopted an amendment to the Constitution which assured free speech, the air and the pages of our books sometimes become polluted with material that offends. Harriet Beecher Stowe did just that in 1852.

Justice Alito’s majority opinion crackles with rejection of the material in the books and contempt for the school board and administration that “forced” it on families with religious beliefs which reject gender or non-heretosexual preferences. Inside the households of the Supreme Court and those families (thousands we are told based on statements made by citizens at school board meetings) these views merit respect. But, what this ruling implies is that as a person required to enroll my child in some school, I have a veto power over what the elected school board chooses to teach.

Again, I don’t personally believe that teaching kids how and why they must accept conduct inimical to their parent’s faith is a productive enterprise. And some of the materials quoted seem to suggest that students don’t merely have to tolerate sexual choices, they should embrace doing so. That seems weirdly extreme. But, unless we are going to put judges in classrooms, the fact is that public schools are cauldrons of all sorts of prejudices- some of which we embrace and others we might detest. Exposure to prejudices is part of how we learn. Respectfully, five of our Supreme Court justices would not be on the court and would never have become lawyers except that we learned that our prejudices based on gender and color were meritless.

So, how about we return to the classrooms in Montgomery County, Maryland and try out some of the principles to be garnered from the Mamhoud case? Let’s go to a home economics classroom where students are learning to cook. The teacher pops out some shrimp or a pork loin or a tenderloin of beef. Suddenly, Jewish, Muslim and Hindu children start running for the exits. This is offensive to their parents’ religious teachings. Next is history class and to celebrate 250 years of American independence the teacher is discussing Valley Forge and the transformation of army training under the leadership of Friederich von Steuben. If you have read much about him, there is substantial reason to think that he was gay. Is the teacher allowed to mention that or would that be promoting values offensive to the religious preferences of parents in the community? In music class, they are studying Samuel Barber. Can it be mentioned that Barber had a lifelong relationship with Gian Carlo Menotti or does that cross the line?

Let’s also recall that the school system under the microscope has over 300,000 parents, some of whom have views that range well beyond Catholicism, Ukranian Orthodoxy and Islam. There are those who believe that the Bible suggests people of color are lesser humans. There are people whose religious beliefs hold that women are inferior to men and subject to their control. There are varying views on the time and place it is appropriate for medical intervention rather than conform to the perceived will of a higher being. Vaccination has been a central theme in that area. With 300,000 parents, I’m certain there are some who think the Earth remains flat and that the day of Armegeddon is not far off. Do all of these views need to be accomodated? Can the flat Earth child asked to be excused from Astronomy and for a separate exam that does not incorporate the “round” theory?

Yes, Wisconsin v. Yoder did inflict mandatory school attendance. But it did not tell the Amish community what values to teach at home. There are some Muslims who are undoubtedly offended that women are attending mandatory public school at all. Others may be offended that the vast majority of women in school omit burqas or any form of head covering.

A fair piece of the majority opinion seems to hang on the school board’s prospective decision to not permit students to leave class when seemingly offensive topics are taught. The problem here is that this disrupts the class and creates a school management problem in terms of where these students are to go. Again, parents have every right to inform their children that what the school teaches is not in conformity with the household beliefs, whether religious or otherwise.

As we all know there is a lot of discussion these days about the rise of textualism in the Supreme Court. I conclude by inviting readers to look at a film clip of Justice Hugo Black discussing why he did not bother to view the alleged pornography involved in Jacobellis v. Ohio (1964) It’s on YouTube under the title of “Justice Black and the Bill of Rights.”  Black held that whatever was in the offending film was protected by the 1^st Amendment because he didn’t know what pornography was and didn’t feel he had the right to decide that. His most trenchant comment was, essentially, that no one was ever harmed by learning. May the Courts “learn” by his example rather than give us excerpts of childrens’ books and profess to join in being offended. Black would have scoffed at an opinion that is based on a finding that school instruction, in any form is “unduly burdensome.”

The flat earth society had its day. The belief that American women or people of color were subordinate to white males also long prevailed until we “learned.” More recently, we came to recognize that same sex relationships were a reality, not a crime, and American polls show how attitudes have changed. The Alito opinion visits three households which embrace the concepts that sex is only between married men and women and that once a higher being appoints your gender you have no right to act in other ways. These views merit tolerance and respect. But to say that public schools must accommodate these views because they spring from religious conviction is allowing 0.003% of the parent population of Montgomery County, Maryland’s schools to dictate how the school is operated for their children. That’s what percentage of school parents signed a petition opposing the teaching in question.

This debate is part of the larger battle over rights of privacy we have written about for some time. The decisions this month are inconsistent. The state has the right to tell parents that they cannot provide palliative gender care; a decision where the state has come into the family household and dictated the result. U.S. v. Skrmetti. Today’s ruling says, parents can now go into the public school building and tell the schools what they can and cannot teach notwithstanding the fact that the people running the schools both on a state and local basis are elected for that very purpose. Stuck in the middle, and rarely given thought are judges in custody cases who are tasked with making the “right” decision in a world where parents disagree over subjects like sex education, transgender care or vaccination. Today’s opinion assumes all parents agree on these issues. The judicial dockets show otherwise.