The Supreme Court will decide whether to turn teachers into informants against their students

The Supreme Court is currently considering whether the Constitution requires public schools to out transgender students to their parents, even when those students inform the school that they do not want their family to be informed of their gender identity. The case, which is currently pending on the Court’s shadow docket, is known as Mirabelli v. Bonta.

California law provides that public school employees “shall not be required to disclose any information related to a pupil’s sexual orientation, gender identity, or gender expression to any other person without the pupil’s consent unless otherwise required by state or federal law.” The plaintiffs in Mirabelli argue that this law is unconstitutional, and they ask the justices to embrace a trial judge’s claim that “when gender incongruence is observed…parents have a right to be informed.”

The Mirabelli plaintiffs, in other words, claim that the Constitution requires the government to side with parents in an internal family dispute with their own children. When a public school student wants to keep their trans identity secret from their parents, these plaintiffs argue, government employees are constitutionally required to defy the child’s wishes and inform the parents regardless.

Nor is Mirabelli an isolated case. While Mirabelli sits on the Court’s shadow docket (a forum for expedited matters that the justices often decide without explaining why they ruled the way they did), the Court is also weighing whether to hear a nearly identical case, known as Foote v. Ludlow School Committee on its merits docket (unlike shadow docket cases, the justices typically release a published opinion explaining why they ruled the way they did in merits docket cases). Last year, Justice Samuel Alito complained in a third case that, in his view, too many lower courts are avoiding the question of “whether a school district violates parents’ fundamental rights” when they permit a transgender student to socially transition.

Off the Court, the Federalist Society, the powerful legal group with close ties to the Republican justices, hosted a debate at its most recent national convention on whether “parents have a constitutional right to know and consent to public school facilitation of their children’s gender-identity transition.” 

This question, in other words, is clearly a matter of great importance to the conservative legal movement’s religious wing. And the Supreme Court’s Republican majority rarely breaks with the religious right on its high-priority issues.

It is inevitable that public school teachers, and the officials who write the curricula taught by public school teachers, will shape the moral beliefs of their students. Indeed, the Supreme Court historically viewed this reality as a good thing. As the Court said in 1979, one of the public school system’s most important functions is to “inculcat[e] fundamental values necessary to the maintenance of a democratic political system.”

To the extent that Americans disagree about which values these schools should teach, the United States has historically managed these disagreements by giving the lion’s share of control over public schools to state governments and local school boards. A school in rural Arkansas may teach different books than a school in Manhattan. And that’s okay.

Lawsuits like Mirabelli and Foote, by contrast, seek to centralize control over public schools in a Supreme Court dominated by conservative Republicans. And those six Republicans recently showed that they are very eager to become superintendents of the entire nation’s public schools.

The religious right just won a transformative victory over public education

Until very recently, federal courts firmly rejected the idea that courts should micromanage how public schools teach and relate to their students — largely due to concerns that schools would find it impossible to function if they were subject to such management. In a 1948 opinion, for example, Justice Robert Jackson wrote that there were “256 separate and substantial religious bodies” within the United States, and warned that “if we are to eliminate everything that is objectionable to any of these warring sects or inconsistent with any of their doctrines, we will leave public education in shreds.”

This hands-off era came to an abrupt halt last June, however, with the Supreme Court’s decision in Mahmoud v. Taylor (2025). 

In Mahmoud, the Court’s Republican majority held that parents who object to books with LGBTQ+ characters or themes must be informed if those books will be used in their child’s classroom, and given a chance to opt their child out of that lesson. But the opinion speaks in broad terms, suggesting that any parent who objects to any lesson on religious grounds must be given this right — even if the school district could not possibly have known about the parent’s objection in advance.

Among other things, Mahmoud is likely to impose a “Don’t Say Gay” regime on public schools throughout the country. As Justice Sonia Sotomayor warned in dissent, many school districts “cannot afford to engage in costly litigation over opt-out rights or to divert resources to tracking and managing student absences.” And so their only practical option will be to “censor their curricula” to remove material that might trigger a religious objection from anyone.

Mahmoud, in other words, fundamentally reshaped the relationship between public schools and the judiciary, forcing judges to police schools for any lesson that might trouble any person’s religious beliefs. And, as Mirabelli and similar cases show, advocates for the religious right are already demanding more from their allies on the Supreme Court.

The death of institutional conservatism

Justice Jackson’s warning about “leaving public education in shreds” was rooted in the Court’s longstanding belief that public schools are an essential institution, and that the Constitution must be interpreted in a way that allows this institution to thrive. 

As the Court said six years later in Brown v. Board of Education (1954), its most famous intervention in state education policy, “education is perhaps the most important function of state and local governments” — and not just because it prepares children to hold a job as adults, but also because it enables people to be good Americans who contribute to the collective project of the nation. Public schools, the Court explained in Brown, lay “the very foundation of good citizenship.” They enable citizens to perform “our most basic public responsibilities.” And they “awaken[] the child to cultural values” that schools seek to inculcate in all Americans.

This is why modern-day public schools typically teach texts like the Declaration of Independence, with its statement that “all men are created equal,” or Dr. Martin Luther King Jr.’s “I Have a Dream” speech. These texts are a kind of secular liturgy, taught to all Americans in the hope that we will all embrace liberal democratic values.

Indeed, before Mahmoud, the Court’s conservative wing had historically been even more protective of public schools’ role as evangelists of universal American values than more liberal justices. Consider, for example, Ambach v. Norwick (1979), where a 5-4 Court upheld a New York state law that prohibited noncitizens from being public school teachers unless they were actively trying to become citizens. The five most conservative justices who served at the time formed the majority.

Those five justices reasoned that, because training children to be good US citizens is one of the most important functions of public schools, the schools could refuse to hire teachers who are uninterested in US citizenship. Public schools, Justice Lewis Powell wrote for the Court, are an “‘assimilative force’ by which diverse and conflicting elements in our society are brought together on a broad but common ground.” Hence Powell’s conclusion that public schools “inculcat[e] fundamental values necessary to the maintenance of a democratic political system.”

Given the high regard the Supreme Court used to hold for public education, it used to avoid reading the Constitution in ways that would undermine public schools’ ability to function. In Tinker v. Des Moines Independent Community School District (1969), for example, the Court famously declared that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Yet it also held that those rights must yield when they disrupt teachers’ ability to educate. 

Under Tinker, a public school student may not claim First Amendment protection when their speech “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” The justices recognized that public schools could not function if students had a right to disrupt lessons, so they carefully crafted a rule that respects student free speech without undercutting the school’s ability to teach math, history, or American values.

Mahmoud is incompatible with this more modest approach to judging. Much like a school that teaches the Declaration of Independence in order to foster American values like universal equality, the school district in Mahmoud said that it wanted its curriculum to include some books with LGBTQ+ characters in order to showcase American values such as “the richness of cultural pluralism and commonality.” 

But it was this very effort to, in Ambach’s words, inculcate children in “fundamental values” that the Republican justices found objectionable in Mahmoud. According to Justice Samuel Alito’s majority opinion, the LGBTQ-themed books were unacceptable precisely because they were “designed to present certain values and beliefs as things to be celebrated.”

The holding of Mahmoud, moreover, was extraordinarily broad. It seems to say that all public schools must notify parents in advance if they plan to teach a lesson that those parents object to on religious grounds, and that the school must also allow the parents to opt their child out of that lesson. 

But, as Justice Sonia Sotomayor wrote in dissent, this rule will create “chaos” in public schools because it is not possible for schools to anticipate every objection that a parent might raise, and to warn them in advance. In previous court cases, parents raised religious objections to lessons touching on topics as varied as divorce, interfaith couples, “immodest dress,” evolution, pacifism, magic, women achieving things outside of the home, and “false views of death.” How is a school that wants to teach, say, a biography of President Ronald Reagan supposed to know, in advance, if one of its students’ parents finds this book objectionable because Reagan was divorced?

In criticizing Mahmoud, I want to be clear that I do not object to the Court’s conclusion that classroom instruction on sensitive topics like sexuality may sometimes violate the Constitution’s religious protections. The problem with Mahmoud is that it imposes an impossible burden on public schools, requiring them to anticipate any religious view that might be held by any parent. What the Court should have done instead is the exact same thing it did in Tinker: craft a legal rule that respects constitutional rights without undermining public schools’ ability to function.

But the kind of conservatism that respects institutions like public schools is no longer present on the Supreme Court. It’s been replaced by a conservatism that fetishizes the interests of the religious right.

Students should also have freedom of religion

So what, then, does Mahmoud mean for Mirabelli, and for other cases where religious conservatives want to control public schools? The short answer is that Mahmoud is a very helpful case for the Mirabelli plaintiffs. If the Constitution requires teachers to tell parents if they plan to teach a book with a trans character, why wouldn’t it also require them to tell a student’s parents if the student says they are trans?

One possible answer, as the appeals court that heard Mirabelli concluded, is that Mahmoud applies only to “curricular requirements” and not to “general operational policies that involve no instruction.”

At the Federalist Society’s debate on whether public schools must out trans children, University of Chicago law professor Mary Anne Case argued extending Mahmoud beyond a school’s curriculum would be even more disruptive than Mahmoud itself.

“Many parents have extremely strong religious ethical views about the foods a child consumes,” Case pointed out. If a child’s parent wants their family to only eat kosher or halal food, does that mean that the school must immediately inform the parents if their child is caught with a piece of bacon? If a parent wants their child to wear “religious garb,” is the school supposed to monitor that child to make sure that they do not remove a hijab or a yarmulke? Similarly, if a child holds different religious views than their parents, is the school required to warn the parents if that student wears a headscarf, a kippah, or a cross necklace at school?

If a parent believes, for religious reasons, that their child should not form romantic attachments prior to marriage, are teachers obligated to tell the child’s parents if they are dating someone? What if the student is gay, and the parents object to homosexuality? Are schools required to reveal that information as well? And, what happens if teachers reasonably believe that the parents may be abusive? If a student tells their teacher that they are scared because their father will beat them or kick them out of the house if he discovers that they are trans, does the Constitution really require this teacher to out the student?

Unfortunately, it’s unlikely that any of these arguments will persuade this Supreme Court — the Republican justices already revealed in Mahmoud that they do not care if their approach to religious liberty forces public schools to do the impossible. But there is another reason why Mirabelli is different from Mahmoud that could be more persuasive to this Court.

As the appeals court that ruled against the Mirabelli plaintiffs noted, “the challenged policies appear to apply only when a student makes the voluntary decision to share their gender nonconformity with the school.” The Mahmoud opinion has very little to say about the right of students to express themselves or form their own beliefs, possibly because that case primarily dealt with younger students who may not yet have formed opinions on gender or sexuality.

But when a child tells their teacher that they are transgender, and that they do not want their parents to know this fact about them, that child is asserting their own right to self-definition. They are also implicitly asserting a religious belief. A child who tells a teacher that they are trans, and that they do not want their parents to know because of their parents’ anti-trans religious views, is exercising their constitutional right to hold religious beliefs that are different from their parents’.

The heart of the Mirabelli plaintiffs’ claim is that a parent’s right to exercise their religion trumps the right of the child to exercise theirs. But the Constitution provides that all people, parents and children alike, may freely exercise their faith. 

“Total parental control over children’s lives”

Mirabelli is rooted in a fairly explicit vision of parents as domineering figures who control all aspects of their children’s lives, even against the wishes of those very children. And the Mirabelli plaintiffs claim that the Constitution obligates the government to enforce parental domination. At one point, their brief even quotes a dissenting opinion from Justice Clarence Thomas, which argues that minors should be stripped of their First Amendment rights because “the concept of total parental control over children’s lives extended into the schools.”

Accordingly, the plaintiffs’ most radical legal argument is rooted in an old Supreme Court precedent that they read to say that parents have a “right of control” over their children.

It is true that, more than a century ago, the Supreme Court handed down two cases — Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925) — that held that parents enjoy some amount of “liberty” to “direct the upbringing and education of children.” But those cases involved far more modest legal claims than the one in Mirabelli. In Meyer, the Court struck down a Nebraska law that forbade teachers at private schools from teaching foreign languages prior to the eighth grade. And in Pierce, the Court struck down an Oregon law that forbade most parents from sending their kids to a private school altogether.

If Meyer and Pierce were decided today, the Court most likely would reach the same result, but for very different reasons. A ban on teaching foreign languages obviously violates the First Amendment’s free speech protections. And the Oregon law struck down in Pierce was almost certainly motivated by anti-Catholic sentiment and a desire to ban parochial schools, and thus violates the Constitution’s guarantee that everyone may practice their faith.

But the Supreme Court’s approach to individual rights was completely haphazard in the 1920s, and it paid no heed to the text of the Constitution. The Court frequently made up “rights” that do not appear in the Constitution, such as a “freedom of contract” that was frequently used to strike down laws protecting workers. Meanwhile, textually protected rights such as free speech more or less did not exist in the 1920s, at least according to the Supreme Court.

Yet, while the Supreme Court largely repudiated this anti-textual approach to constitutional interpretation in the 1930s, Meyer and Pierce remain good law. So the Mirabelli plaintiffs are correct that, under current law, parents do enjoy some amount of “liberty” to raise their children as they choose. But neither case — both of which merely said that parents may send their children to private schools which may teach different subjects or instill different values than public schools — has ever permitted parents to control how public schools operate. 

Parents, of course, have a near-absolute right to decide which values they wish to teach their own children. But it is neither possible, nor desirable, for a family to completely insulate its children from other value systems and ideas. And the fundamental question presented by cases like Mirabelli is whether American society as a whole should also play a role in shaping public school students’ values. If a family wishes to teach its children that pluralistic democratic values are wicked, are public schools forbidden from teaching an alternative viewpoint?

Before Mahmoud, the judiciary’s answer to this question was an emphatic “no.” Disagreements about which values should be taught in public schools were dealt with democratically, through elections for state legislature or local school boards. But a family that wants to teach their children that, say, white people are inherently superior to Black people, couldn’t sue their local school board because they don’t want their child to read To Kill a Mockingbird.

Litigants like the Mirabelli plaintiffs reject this kind of federalized pluralism as well. The fundamental premise of their lawsuit is that control over public education should be transferred from state and local authorities to Brett Kavanaugh and Amy Coney Barrett. They want a one-size-fits-all approach to education — just so long as the one size is selected by Republicans in the nation’s capitol.