Professor Justin Driver Cited Twice in Supreme Court Case

In the recent U.S. Supreme Court case Mahmoud v. Taylor, Robert R. Slaughter Professor of Law Justin Driver was cited twice — by justices who ultimately came down on different sides of the case. 

The case concerns religious freedom and parental rights to opt children out of curricular offerings at public schools. 

In 2022, Maryland’s Montgomery County Public Schools district approved the use of LGBTQ+-inclusive books in the curriculum. Parents were initially granted notice and the opportunity to opt their children out of lessons including these books, but the following year, the school board eliminated that option. A group of parents sued the school board, arguing that their religious freedom and parental rights were violated by the denial of notice and a chance to opt their children out of exposure to certain texts.

The district court found that the parents failed to demonstrate a sufficient burden to their religious freedom and denied the parents’ motion for a preliminary injunction, a ruling later affirmed by the U.S. Court of Appeals for the 4th Circuit. 

But the Supreme Court found in its 6-3 ruling issued on June 27 that the parents were entitled to a preliminary injunction because the school board’s policy did pose a “very real threat” of undermining parents’ religious beliefs and practices. 

Justice Clarence Thomas ’74, in his concurring opinion, noted that the Court had previously protected the right of parents to inculcate religious beliefs in their children, back in 1925. Thomas cited Driver’s book “The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind,” specifically a section in which Driver looked at historical attempts — encouraged by President Theodore Roosevelt — to help immigrants assimilate through the U.S. school system. 

“The Board’s response to parents’ unsuccessful attempts to opt their children out of the storybook curriculum conveys that parents’ religious views are not welcome in the ‘fully inclusive environment’ that the Board purports to foster,” wrote Thomas.

But in her dissenting opinion, Justice Sonia Sotomayor ’79 cited an amicus brief written by Driver and UCLA School of Law First Amendment scholar Eugene Volokh supporting the respondents, which noted that a constitutional right to opt out of instruction will create an administrative “nightmare” for schools.

“Worse yet, the majority’s new rule will have serious chilling effects on public school curricula. Few school districts will be able to afford costly litigation over opt-out rights or to divert resources to administering impracticable notice and opt-out systems for individual students. The foreseeable result is that some school districts may strip their curricula of content that risks generating religious objections,” wrote Sotomayor.

In their brief, Driver and Volokh noted that the parents had argued that “merely introducing students to books in tension with their religious faith violated the Free Exercise Clause… Petitioners’ sweeping opt-out theory is inconsistent with free-exercise law and would undermine the educational system.”

Driver is an expert in the field of constitutional law. He is an elected member of the American Law Institute and an elected fellow of the American Academy of Arts & Sciences and a recipient of the American Society for Legal History’s William Nelson Cromwell Article Prize. His latest book, “The Fall of Affirmative Action: Race, the Supreme Court, and the Future of Higher Education” will be published in September 2025.