'In Terms Of Opt Out...': Elena Kagan Presses Attorney Making Case Against LGBTQ Books In Schools

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Justice Elena Kagan questions attorneys during Oral Arguments for Mahmoud v. Taylor, a case involving LGBTQ+ books in schools.

Transcript

00:00for students who disagree. Mr. Baxter, I guess I'm interested in what the nature of the rule

00:04you're asking for is. I mean, when you started, it was about, you know, matters pertaining to sex.

00:13But as you've answered some of these questions, you've basically said, well,

00:17you know, my clients have religious principles that conflict with what is being taught.

00:23And does it go that far? In other words, you know, does it matter what the subject matter is? Does

00:30it matter what the age of the child is? Does it matter what the nature of the instruction is?

00:36If so, how does it matter? Or in the end, is what you're saying when a religious person

00:42confronts anything in a classroom that conflicts with her religious beliefs or her parents that

00:51that the parents can then demand an opt out? It's really the latter, Your Honor. And that's

00:56exactly what Montgomery County allowed in its own religious diversity guidelines. Anything that

01:00violated a student's or imposed a substantial burden in their language on a student's religious or

01:05parents' religious beliefs, they had the right to opt out. So this is a rule that applies as well

01:10to a 16-year-old in biology class saying, you know, I don't, you know, the parents say,

01:18I don't want my child to be there for the classes on evolution or on other biological matters which

01:26conflict with my religion. It would apply just as well to that. We know that those don't happen

01:30very often because country... But it would if there were. Certainly. And schools have, there are laws,

01:35for example, in states that allow students to opt out of dissection because they don't want to

01:39participate in that. And there are schools that allow, there are schools across the country,

01:42Hawaii, which has a school district about the same size as Montgomery County... And if that's the,

01:46so that's a pretty broad rule. If that's the, let me ask what the next step of that is. Suppose there

01:53are things that, you know, students opt out of, and then, you know, the parents think, it's just not really

02:01fair that my student, that my kid has to leave the classroom or has to put on, you know, head phones or,

02:09you know, has to otherwise be made to feel isolated. So the next challenge is really the class can't do

02:18this either. Would, what would your position be on that? Well, no student, your honor, has the right

02:24to tell the school what to teach or to tell other students what they have to learn. You would clearly

02:28run into problems in that situation. But to the extent that this is a rule about people being able to

02:34access public education in a sort of equal manner, the parent might say, my child is not being able

02:42to access education in that equal manner because, you know, he's made to leave the classroom or he's

02:49made to, you know, do something else that isolates him from the class. I mean, certainly that's an

02:55argument that we've often heard with respect to prayer and that people have accepted with respect to

03:01prayer, accepted with respect to prayer, that it's kind of like not a sufficient answer to just say,

03:06don't worry, the prayer can go on. You don't have to be part of it. So I'm just wondering whether

03:12that's the next step here. No, your honor, I don't think so because the, of course, under the

03:16establishment clause, there are different rules, but under the free exercise clause, we think that

03:20the, on strict scrutiny, those parents would, would always lose if they're trying to direct the school

03:25what to teach or tell other students what they must teach. Okay, but you are suggesting, okay, so that's a,

03:30that's a straightforward answer. I appreciate that. But just to go back, and this was also a

03:37straightforward answer, which I appreciate, but in terms of opt out, you're basically saying opt out

03:43for anything. It's, it's really the parents that get to decide, you know, assuming that their beliefs

03:48are sincere, right? It's really the parent that gets to decide. Doesn't matter the kid's age, doesn't

03:54matter sex, not sex. Doesn't, doesn't really matter this whole idea, I suppose, of pressure or

04:01coercion. You know, if like just looking at a book would be in conflict with religious principles,

04:10that would be enough. Well, and I would just to be clear, under Yoder, the court left open what would

04:15happen if there were kids who objected. But we know that these things, you know, schools around the

04:19country already have these very broad opt out policies across the curriculum in Hawaii for anything

04:23controversial, in Arizona for anything that parents find deemed harmful. And we just don't find these

04:28kinds of cases or these kinds of burdens where parents are bringing extreme examples. You know,

04:34parents with kids really don't have a lot of time to be suing the school board and they're looking for

04:37the original. Sorry.

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