Mother Knows Best? Mahmoud v. McKnight and the Question of Parental Free Speech in Public School Curriculum Selection

Natalie Wren

The public school system has long been a hotbed for divisive political issues. Mahmoud v. McKnight, a District of Maryland case that made its way to the Supreme Court of the United States, is but one of many examples. In Mahmoud, parents (the “Parents”) of elementary-aged students alleged that their Free Exercise and Due Process rights were violated when a Maryland school district chose to integrate LGBTQ+ issues and characters into the language arts curriculum with no opportunity for parents to opt their children out. Curiously, the Parents also alleged that the school’s curricular choices violated both the Parents’ and their students’ free speech rights. This claim raises important questions about the balance between a school’s authority to choose appropriate curricula, students’ right to receive information, and a parent’s interest in having their values reflected in such curricula.

The Parents’ claim in Mahmoud is unique in that free speech claims involving public school curriculum usually implicate a student’s, rather than a parent’s, free speech rights. The Supreme Court has directly addressed students’ rights on several occasions; however, parental free speech in the context of curriculum selection is a relatively novel area of constitutional law. Through the lens of Mahmoud, this Comment will explore the intersection of schools’, students’, and parents’ free speech rights and ultimately address the free speech question raised by the Parents’ claim: Does a school district’s choice to exclude a purely “biological understanding” of sexuality from the curriculum violate a parent’s free speech rights?

The Supreme Court has acknowledged that parents have general rights to control the care and custody of their children; however, this Comment will show that it is unlikely that the Constitution protects a parent’s right to exert the level of curricular control that the Mahmoud parents sought in their original complaint. Even if the Court recognized a parental free speech interest in public school curriculum selection, students’ and public schools’ conflicting rights and interests should dissuade the Court from giving parental free speech greater weight in curriculum selection challenges. Part I explores the history of constitutional arguments for parents’ rights in public education, and free speech jurisprudence that led to Mahmoud. Part II analyzes the likelihood of success of the Parents’ free speech claim and the policy implications of recognizing parental free speech rights in public education.