Introduction
Wendy Weaver, a teacher at Spanish Fork High School in Utah, worked as the school’s volleyball coach and led the team to the state championships on four occasions.
Even though she was well beloved by students,
this meant little when the Spanish Fork community—a small, majority-Mormon town—discovered that she was a lesbian.
Parents accused Weaver of “direct[ing] and encourag[ing] a network of physically affectionate female volleyball players” and of violating teacher certification standards.
The district relieved Weaver of her duties as coach and told her to avoid discussions about her sexual orientation inside or outside the classroom.
Weaver took the school to federal court, winning an equal protection suit against it.
Undeterred, the parents of Spanish Fork sought to hold her to account in Utah state court, relying on a law regulating teacher conduct.
They claimed that since they were taxpayers paying Weaver’s salary, they could contest her suitability to teach.
Since Weaver was a teacher who did not conform to the community’s values and standards, the parents worried that their children would think that morality was not important.
Weaver’s attorney retorted that if “[a]nytime the mere presence of someone offends someone’s rights, [that means] you have to start providing different access to facilities . . . . It goes right back to separate but equal.”
The Utah courts found that the law the parents relied on did not give them a private right of action, and the parents lost.
Twenty-five years later, the parents of Spanish Fork may have had better luck. That is because of Mahmoud v. Taylor, a decision in which the Supreme Court credited the free exercise claims of parents seeking to shield their children from some aspects of public education.
While that decision was limited to opting children out of certain aspects of classroom instruction, it seems to herald a new era in which religious parents are able to effectively veto whole swaths of public school policies.
And only eight months after Mahmoud, the Supreme Court stretched its opinion even further in an interim docket order, Mirabelli v. Bonta.
That order expanded Mahmoud in two ways. First, it clarified that Mahmoud applies to noninstructional school policies, like those that allow children to use their preferred names and pronouns at school without parental notification.
Second, it expanded Mahmoud beyond the free exercise context by recognizing that any parent, religious or nonreligious, has a substantive due process right to opt out of certain educational policies.
Parents have taken up the invitation, wielding Mahmoud to challenge a variety of noninstructional school policies that allegedly infringe on religious or parental prerogatives. These include preferred pronoun policies
and mandatory vaccination policies.
If requirements like these are now vulnerable to parental ire, it is possible that the Spanish Fork parents would have had a significantly greater chance of succeeding in their campaign against Weaver. In the process, those parents would have implicitly taught their children that people like Wendy Weaver did not belong.
This Note seeks a limiting principle for Mahmoud and Mirabelli. It argues that courts should continue to recognize that public schools have a compelling interest in a nondiscriminatory learning environment and can maintain school policies serving that interest, like those governing teacher assignments and bullying, without granting opt-outs on free exercise or substantive due process grounds. Exempting these policies from Mahmoud’s opt-out regime will preserve two core functions of public schools: offering free public education to all on equal terms and creating the tolerant citizenry necessary to maintain the pluralist char-acter of the United States. Part I traces the importance of these administrative decisions—which this Note refers to as a school’s “soft curriculum”—and the Supreme Court’s growing recognition of religious opt-out claims. Part II analyzes Mahmoud’s and Mirabelli’s reasoning and their reception in the lower courts. It finds that some courts have begun to apply Mahmoud-style opt-out requests to public schools’ soft curricula with little reservation and explains why that broad application is undesirable. Part III argues that the Supreme Court’s public accomm-odations precedents set a limiting principle on Mahmoud and Mirabelli in the soft curricular context by articulating antidiscrimination interests that are sufficiently compelling and narrowly tailored to survive strict scrutiny.