Originally appeared in the CAS Weekly Newsletter
Dear Legal Mailbag:
Yesterday, I received a form letter from a parent, in which she attested to her religious convictions, stated that she has the right to raise her child in accordance with Biblical values, and expressed concern over what her child may be exposed to at school. Parents are certainly entitled to their opinions, and that is all fine with me. But then she went on:
Accordingly, I have the right to have my child excluded from any and all such activities, events, programs and reading material not in accordance with our beliefs or values, without penalty. This exclusion applies throughout the time my child attends public school and should be maintained in his permanent file.
As a parent/caregiver, the expectation is for my child to be excluded from:
1. Any instruction, emphasis, teaching, video presentation, literature or activity that acknowledges and/or accepts the family institution as other than one reflecting God’s creation as male and female. This includes topics of gender other than reflecting the gender at birth which are only two: male and female.
2. Same gender parents.
The list went on, but the first two demands threw me for a loop. We teach tolerance at our school. We teach that love makes a family, and our curriculum includes depictions of different types of families. I certainly respect the right of parents to hold their personal religious views and to raise their children in a manner consistent with those views. However, I cannot imagine how we could comply with this request. Do we have to?
You do not.
Public schools have an affirmative duty to accommodate the religious practices of parents and students. A student should not suffer a disadvantage, for example, for missing school or a school activity to celebrate a religious holiday. But that duty does not extend to the request this parent is making. Exposure of students to ideas and practices with which parents may disagree is part of school life, and the courts have rejected claims that such exposure somehow violates the religious rights of parents or their children. Rather, school officials have the right to establish the curriculum, and parents are free either to send their children to the public schools to receive that curriculum or “to show that the child is elsewhere receiving equivalent instruction in the studies taught in the public schools” as required by Conn. Gen. Stat. § 10-184(a). Parents may make that showing by enrolling their children in a private school or by providing home instruction.
There are specific exceptions to the general rule that students attending the public schools may be required to attend classes even if a parent objects to the curriculum being taught. Under Connecticut law, parents may request in writing that their children be excused from specific areas of the curriculum. Those topics and the legal authority under which such excusal is permitted are as follows:
- Acquired immune deficiency syndrome instruction. Conn. Gen. Stat. § 10-19(b).
- Family life education. Conn. Gen. Stat. § 10-16e.
- Firearm safety programs. Conn. Gen. Stat. § 10-18c.
- Sexual abuse and assault awareness. Conn. Gen. Stat. § 17a-101q(c).
- Dissection. Conn. Gen. Stat. § 10-18d.
In each such case, parents may simply object in writing, and excusal from these curricular topics and activities must be granted.
Here, the parent is not exercising the right of excusal as provided by statute. Rather, the parent is asking that her child not be required to attend other classes in which views on gender and family contrary to her religious beliefs are expressed. Two federal appellate court decisions demonstrate that you do not have to accommodate that request.
As faithful readers of Legal Mailbag may recall reading (Legal Mailbag, February 18, 2021), the Second Circuit Court of Appeals dealt with a parent’s objection to his son’s being forced to participate in the health curriculum in middle school in Leebaert v. Harrington, 332 F.3d 134 (2d. Cir. 2003). There, a parent objected to certain parts of the health curriculum, and he asserted that, as the parent, he has the right to determine whether and to what extent his son would participate in the health curriculum. However, both the district court and the appellate court disagreed with the parent’s claim that his fundamental rights as a parent were violated when the Fairfield Public Schools required, over his objection, that his son to attend health classes (other than those for which the statutes permitted excusal). The Second Circuit affirmed the district court’s holding that school officials have the right to establish the curriculum, and that exposure through that curriculum to ideas contrary to a parent’s religious or philosophical views does not violate the rights of the parent or child.
A decision of the First Circuit Court of Appeals is instructive on the issue this parent raises concerning gender and family. In Parker v. Hurley, 514 F.3d 87 (1st Cir. 2008), the court considered a claim that the Lexington (Massachusetts) Public Schools violated their rights under the First and Fourteenth Amendments by including in classroom instruction for elementary students materials that depicted gay persons and same-sex marriages:
The First Circuit Court of Appeals affirmed the lower court ruling and rejected these claims:
While we accept as true plaintiffs’ assertion that their sincerely held religious beliefs were deeply offended, we find that they have not described a constitutional burden on their rights, or on those of their children.
* * *
Public schools are not obliged to shield individual students from ideas which potentially are religiously offensive, particularly when the school imposes no requirement that the student agree with or affirm those ideas, or even participate in discussions about them.
* * *
We do not suggest that the school’s choice of books for young students has not deeply offended the plaintiffs’ sincerely held religious beliefs. If the school system has been insufficiently sensitive to such religious beliefs, the plaintiffs may seek recourse to the normal political processes for change in the town and state. . . . . They are not entitled to a federal judicial remedy under the U.S. Constitution.
Finally, Legal Mailbag notes that state law provides protection against governmental burdens on the exercise of religion. Conn. Gen. Stat. § 52-571b provides that “the state or any political subdivision of the state may burden a person’s exercise of religion only if it demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest, and (2) is the least restrictive means of furthering that compelling governmental interest.” That protection would apply, for example, if a school district prohibited a student or teacher from engaging in a religious activity without a compelling need to do so. However, as the court held in Parker v. Hurley, exposure to ideas contrary to one’s religion is not a burden on the right of that person to practice that religion.