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Abstract: The Supreme Court held last term in Mahmoud v. Taylor that public schools must permit parents to opt their children out of curricular content if they object on religious grounds. The decision, of course, generated considerable conversation and controversy largely centered on a single line of inquiry: should parents have this guarantee, at all? But this debate obscures a deeper, more thorny legal problem. Courts, scholars, and commentators have focused on who holds such an opt-out right. What they have largely ignored is what the exercise of that right does to the public educational institution—and the rights of everyone else within it.
American law defines parental authority by a single organizing principle: parents have the right to make decisions for their children, and the state may not interfere absent extraordinary circumstances. This framework is legible in the private domain, where parental choices control the family alone. But it offers no framework for a mechanism such as the opt-out. When a parent opts a child out of a lesson, the consequences radiate. There are administrative burdens, as teachers must restructure lesson plans, accommodate relocating opting-out students, and create alternative materials. There are stigmatizing harms, as opting-out signals exclusion and ‘other’s those whose identities are subject to the opt-out. And there are chilling effects, as school authorities will increasingly choose “noncontroversial” materials, erasing some identities entirely. These are not the byproducts of private choice. They are instead the hallmarks of regulation.
Drawing on administrative law, rights and democratic theory, education law, and family law, this Article argues that when parental choice causes these externalities, it is no longer “private”: instead, it operates as de facto regulation, governing the educational environment for others. And, if it is regulatory, it must be subject to regulatory and governance norms. This Article repositions this type of choice as a regulatory form itself, proposing a process-based governance framework to evaluate opt-outs in ways the law currently cannot.
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