During Tuesday's oral arguments for 'Mahmoud v. Taylor' Supreme Court Justice Ketanji Brown Jackson questioned an attorney on the use of LGBTQ+ books in elementary schools.
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00:00Your colloquy with Justice Barrett makes me wonder whether this case is really the right vehicle
00:06to evaluate any of these issues. I mean, how can we say that you meet any definition of the
00:15burdens? Justice Barrett went over several different versions of them when we don't even
00:22know how these books are actually being used in the classroom. I mean, this was what I understood
00:27the Fourth Circuit's primary holding to be, that the record is threadbare. It contains no information
00:33about how any teacher or school employee has actually used any of the books or what any child
00:39has been taught in conjunction with their use. And it seems that aspects of your argument are turning
00:46on whether the books are just on the shelves or whether students are being taught. And so why
00:53wouldn't we wait until we have a record regarding those things before we make any legal pronouncements
01:00about what's happening in this case? Well, two responses, Your Honor. First, this is a preliminary
01:04injunction. But if you think about the case, for example, Brown versus, you know, Hot, Sexy, and Safe,
01:10is that, and I don't even want to describe what happened in that case, but should that kind of
01:14graphic sex simulation between, with a student and a teacher have to happen before you bring a claim?
01:20But I need you to focus on my question. This is a preliminary injunction. I appreciate that. When
01:25you seek a preliminary injunction, you actually have to have a factual record that is the basis
01:31for the court to make a determination in your favor that some conduct that you're complaining about
01:37needs to be enjoined. And what's confusing to me, and hard, really hard, in this situation,
01:43is that we have a lot of sincerely held beliefs and concerns and children and principles. And I see
01:51all of those things. And so really want to be careful about making the pronouncement that relates to
01:58this. I don't understand how we can do it on this record, because we can't know. We don't,
02:04we don't at this moment, based on the record you've provided, know that these books aren't just sitting
02:11on the shelves. And you've said that if that's the case, that's not going to be enough.
02:16I disagree, Your Honor. The record is undisputed. And I, again, will refer you to
02:20the district court transcript at 63, where counsel said this.
02:24So you're saying the Fourth Circuit is wrong when it says, quote, we don't have any information
02:29about how any teacher or school employee has actually used any of the books.
02:34The, the, the Court of Appeals did not dispute that some of the books have to be used. And we have
02:39all of the teachers instruction that the board's not disputed. I understand that. But the Fourth
02:42Circuit made a ruling that we don't know, quote, what any child has been taught in conjunction with
02:50their use. So are you saying that you do have affidavits and information about teachers in the
02:57classroom and what they've taught children of different ages about these books? Yes, we do.
03:02The, all of our clients have, in their declarations, they describe which books are going to be read to
03:07their children. Were the clients in the classroom? They were not in the classroom, but they know.
03:11And again, we don't have to wait until the injury has happened to get relief. The point of a
03:14preliminary injunction is that we can, when, when the injury is imminent, we can seek relief to stop
03:19it from happening before our children's innocence is destroyed. All right, let me ask you another,
03:20let me ask you, let me ask you another series of questions, because I'm just trying to understand
03:25the implications of the rule that you want us to reach on this record where we, we're not really
03:32sure what's going on. Is your argument actually confined to the content of the school's curriculum?
03:40I mean, I appreciate that you say we're in the public school. This is a uniquely coercive environment,
03:46but what, what if we have a teacher who is gay and has a photo of a wedding on her desk?
03:52Is a parent able, or could they opt out of having their student be in that classroom?
03:59Well, we think no, because the student, you know, the student may have a, may claim a burden,
04:04and that, but the, on the question of, the student doesn't have the right to tell a teacher what to
04:08say, the teacher has speech rights that would be- But I guess I don't understand that given your
04:12argument. I mean, so, you know, example one, we have a gay teacher in the classroom, and they have
04:18a, a wedding photo on their desk, and the children are exposed then to the same kinds of picture
04:25that you say is in the book that you don't want children to be exposed to. What, what about the
04:31parent, the teacher showing pictures from the wedding, or the teacher goes off to get married
04:36and comes back and talks about their spouse? Do we have opt-out provisions for children in that
04:42situation? Again, we think the same rules would apply, and if you were in a system- The same rules
04:46would apply. So this is not just about books. This is about exposure to people of different
04:53sexual orientations, and the objection, the sincerely held objection, that children shouldn't
05:01be exposed to this. Again, our clients are not raising those, and we know that these kinds of
05:04objections aren't happening. Here, the board is imposing indoctrination on children- What if-
05:09What if, what if a student group puts up love is love posters around the school featuring
05:15same-sex couples or trans youth? May parents, what, do parents have to have notice of this
05:21and the ability to opt their children out of going into the parts of the school where
05:26these posters are? Again, we don't think that any child has the right to dictate what
05:30the school does or what other students say on campus. No, they're not dictating. They just
05:33want an opt-out. They don't want their children walking in the- What do we think they would lose
05:36in that situation? Why? What about your principal does not also mean that if we have a section
05:43of the school with love is love posters and children who have to go through there, what
05:50about your principal says that a religious parent shouldn't be able to say, I don't want
05:54my kid walking in that part of the school? Well, they would lose because the strict scrutiny
05:58analysis would favor the board in that situation because it would be impossible for the board
06:02to satisfy every student's needs about what's on the board. Now, if you're in a situation
06:06I'm sorry, it would be impossible for them to actually implement and opt out in that
06:11situation? That's right. If the request, for example,
06:14is so broad, like it was in Yoder, that the only option is for the students to be removed
06:19from the school entirely, that would be then the least restrictive means available. And so
06:23under normal strict scrutiny analysis, these things- Can I give you one more? What about
06:28a trans student in the classroom? There's a student who's in the class, must the teacher
06:34notify the parents of the student's existence and give them an opt out to not be in the same
06:41classroom with this child? No, and we've never said that there's an independent
06:44right to be noted for schools to anticipate what parents might object to, but when parents
06:47know something, there could be a sincere religious burden. Yes, a parent knows. The child comes home
06:52and says, there is a transgender child in my classroom, and I know what you've taught me
06:59in terms of religious teachings. I object to that. Parent knows. Can a parent insist that
07:06the school allow the child to sit out? Again, we think the parents would lose in that context.
07:10All right, let me ask you one other set of questions about coercion, because Justice Kavanaugh
07:16points out that the test is burdened. I had understood that the way in which this court
07:22analyzed burden in these kinds of cases is to look to coercion, so there really aren't
07:29a separate thing, and I guess what I'm really puzzling over is that it seems to me that coercion
07:36in this context is actually operating at two different levels, and that we have to kind
07:41of really focus on that in order to understand what's happening. One is to the students in the
07:48classroom. The coercion of being forced to be exposed to these kinds of materials or these kinds of
07:54things, or can they opt out? But I think there's another coercion, and you've touched on it a little
08:00bit, and that is assuming that there's no opt-out in this environment. Are students being coerced
08:06into being in that school at all? And I think those two different ways are really,
08:13really important. I mean, as I read our cases, we could have set up a constitutional framework in which
08:19all students are required to attend public school. They have to go to public school, and I think in
08:27that situation, you would have a pretty strong argument that it burdens a parent's religious exercise
08:33if the public school teaches children things that contradict the parent's religious beliefs.
08:39Here I am. I'm a religious parent. I have to put my kid in this school, and when my kid goes there,
08:46he's learning all sorts of things that I'm saying against my religious belief. I get that,
08:53but what do we do about the world that we're actually in, which is where Pierce says that the
08:59parent can choose to put their kid elsewhere, that you don't have to send your kid to public school?
09:06In that situation, I guess I'm struggling to see how it burdens a parent's religious exercise
09:12if the school teaches something that the parent disagrees with. You have a choice. You don't have to
09:19send your kid to that school. You can put them in another situation. You can homeschool them. How is it
09:24a burden on the parent if they have the option to send their kid elsewhere?
09:29Well, Your Honor, the world we live in in this case is that most parents don't have that option.
09:33They have two working parents. They can't afford to in a private school.
09:36Yes, as a matter of practicality, absolutely.
09:37And that's the reality for our parents.
09:38I understand, but in so many other constitutional doctrines, we don't focus on whether people
09:43actually can afford to protect their rights.
09:45Well, here they're forced to pay for the public schooling.
09:48No, I understand, but usually we set aside and we say, but you still have the right to
09:53get an attorney in a civil case, even if you can't afford it, right? So we don't focus on
09:58whether or not they can actually do it. They have an option. And what I guess I'm worried
10:02about is a world in which when there is an option to send your kid somewhere else, it seems to me
10:08that these parents would be dictating what this school does in the way that you say, our cases say
10:14they can't do, right? In Carson versus Fulton, this court never required coercion.
10:18The parents were already paying tuition to go to the school. In all those cases,
10:23Lukumi, the schools didn't really need tires. They weren't being coerced to do anything.
10:27This court has always sent Sherbert. Adele Sherbert, Thomas, they weren't being coerced to do anything.
10:31They just were being pressured to violate the religious beliefs in order to access the benefit
10:35that's much less value than education. Thank you, counsel.