Large, overweening bureaucracies don’t mix well with individual rights. Not only are people too often stunned by governmental intrusion into their personal lives, but bureaucrats regularly cut constitutional corners to make it easier to intrude. Fortunately, in several recent decisions, the Supreme Court found that administrative ease never justifies a disregard for fundamental individual rights.
At the end of its most recent term in late June, the court decided Mahmoud v. Montgomery County Public Schools. There, parents of Muslim, Catholic, Ethiopian Orthodox, and other religious faiths challenged the decision by the Montgomery County, Maryland, board of education to make mandatory a new “inclusivity” storybook series, featuring pride parades, gender transitioning, preferred pronouns, same-sex romance, and other LGBT topics. The parents argued that forcing their elementary schoolchildren to participate in the series violated their First Amendment right to raise the children in their families’ religious faiths.
When the series was first introduced for the 2022-23 school year, parents could opt their children out. Hundreds did. The following year, the board eliminated the opt-out.
Although the board was evasive about why it got rid of the opt-out, its main complaint was that the option put too great a burden on school staff. Such burdens are common in public education, however, and the court found that this one was largely self-inflicted. That large numbers of parents want to protect their children from controversial reading materials, creating more work for school staff, simply shows that the board should never have tried to make the material part of the curriculum in the first place.
The temptation to bypass constitutional protections to make administration easier for the government is not unique to the education bureaucracy. In the 2024 case Jarkesy v. Securities and Exchange Commission, the court ruled that when the SEC seeks penalties for alleged securities fraud, the accused is constitutionally entitled under the Seventh Amendment to a jury trial in federal court, and the SEC cannot compel them to defend themselves before one of its in-house administrative law judges instead.
The SEC argued that, from its perspective, in-house adjudications were more efficient and less costly. Fortunately, the court disagreed, noting in its ruling that bureaucratic efficiency is the wrong measure for determining when constitutional rights must be observed.
Similarly, in the 2021 case Americans for Prosperity v. Bonta, California had demanded that charities disclose donor identities as a precondition for fundraising in the state. California claimed that this would help it combat possible fraud and self-dealing. The court found that the requirement merely made things administratively convenient for the state, noting that it could obtain the same information in individual cases where misconduct was actually suspected. Sweeping collection of donor data, regardless of suspicion, violated First Amendment protections for freedom of association.
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Even more concerning is that in these three cases lurked the specter that government claims of administrative convenience masked more sinister motives. That is, Montgomery County was most interested in indoctrinating young children in LGBT ideology, the SEC simply hoped to present its case to the friendliest forum possible, and California elected officials really just wanted to know who was supporting their political opponents.
Of course, government officials will never confess to such naked abuses of power. But, at the very least, the Supreme Court is making it harder for them to hide their true aims behind efficiency arguments that come at the expense of individual rights.
Donald A. Daugherty is the senior counsel for litigation at the Defense of Freedom Institute.