Ketanji Brown Jackson Does Not Hold Back Grilling Attorney About The Use Of LGBTQ+ Books In Elementary Schools

Forbes Breaking News

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.

Transcript

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.

Category

Transcript

Recommended