Law & Courts

District Can Deny Opt-Outs on LGBTQ+ Books, Court Rules

By Mark Walsh — May 15, 2024 5 min read
A pedestrian passes by the 4th Circuit Court of Appeals Courthouse, June 16, 2021, on Main Street in Richmond, Va.
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A federal appeals court on May 15 refused to block a Maryland school district’s policy preventing parents from opting their children out of LGBTQ+ inclusive “storybooks” used in the English language arts curriculum in its elementary schools.

A panel of the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., voted 2-1 to deny a preliminary injunction to block the policy of the 160,000-student Montgomery County school district outside the nation’s capital.

The school system in 2022 approved books such as Pride Puppy!, which encourages readers to look for terms such as drag queen and king, lip ring, and leather, My Rainbow, and Uncle Bobby’s Wedding to help teach reading to students as young as pre-kindergarten. An associate superintendent said in court papers that the books were not meant to explicitly teach about gender identity and sexual orientation in elementary school, but to be a classroom option for students to discover and for teachers to recommend to some students.

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Genesis Olivio and her daughter Arlette, 2, read a book together in a room within the community hub at John H. Amesse Elementary School on March 13, 2024 in Denver. Denver Public Schools has six community hubs across the district that have serviced 3,000 new students since October 2023. Each community hub has different resources for families and students catering to what the community needs.
Genesis Olivio and her daughter Arlette, 2, read a book together on March 13, 2024, in a room that's part of the community hub at John H. Amesse Elementary School in Denver. The Denver district has six community hubs at schools across the city that offer different services and resources for parents.
Rebecca Slezak For Education Week

Some Christian and Muslim parents, among others, objected to the books as age-inappropriate and infringing on their rights to raise their children. During the 2022-23 school year, parents were given notice and the chance to opt their children out of exposure to the books.

But beginning with the current school year, the Montgomery County board ended the opt-out option. School officials said in court papers that there were a high number of opt-out requests and a burden on school staff members to remember which students could have access to the books and which could not, among other concerns. The district believes that “representation in the curriculum creates and normalizes a fully inclusive environment for all students,” it said in a brief.

Besides helping with language skills, “the Storybooks support students’ ability to empathize, connect, and collaborate with diverse peers and encourage respect for all,” the district said.

A group of Roman Catholic, Muslim, and Ukrainian Orthodox parents sued the district last year, arguing that the policy against opt-outs violates their First Amendment right to free exercise of religion and their 14th Amendment due-process right to direct the upbringing of their children. They argued that their religious beliefs required them to raise their children with traditional views about gender, marriage, and family life.

The conflict is one of many around the country between parents and school districts over curriculum and library books, gender identity, and other issues. The Montgomery County district has also been sued over its guidelines for creating a welcoming school environment for transgender students and has faced criticism of its handling of alleged antisemitic incidents.

A federal district judge in Greenbelt, Md., last year denied the plaintiff’s request for a preliminary injunction blocking the rule. The 4th Circuit’s May 15 decision in Mahmoud v. McKnight upholds the district court.

“We conclude that the parents have not come forward at this stage with sufficient evidence of a cognizable burden on their free exercise rights to satisfy the requirements of a free exercise claim,” says the majority opinion by Judge G. Steven Agee. “What is missing here is the evidentiary link showing that the storybooks are being implemented in a way that directly or indirectly coerces the parents or their children to believe or act contrary to their religious faith.”

Agee said there was little evidence in the record at this point about how the storybooks are actually being used in classrooms or “what conversations have ensued about their themes.”

“Without such evidence, this case presents only an objection to their children’s public school curriculum,” Agee added. “Granting a preliminary injunction here would reset the standard, permitting plaintiffs to obtain a preliminary injunction upon a mere showing that they have a religious objection to their children’s curriculum. The case law does not support that outcome.”

The majority said the parents may be able to present more evidence as their lawsuit proceeds to prove that their rights are being infringed, but at this stage, they have not shown a likelihood of success on the merits of their claims.

Dissent points to opt-out requirement for family life and human sexuality classes

Writing in dissent, Judge A. Marvin Quattlebaum Jr. said, “The parents have shown the [district’s] decision to deny religious opt-outs burdened these parents’ right to exercise their religion and direct the religious upbringing of their children by putting them to the choice of either compromising their religious beliefs or foregoing a public education for their children.”

He pointed to school district materials to be used by teachers and administrators to respond to objections about the storybooks. For example, if a student says being gay is “wrong and not allowed in my religion,” a school official can respond with, “I understand that is what you believe, but not everyone believes that. We don’t have to understand or support a person’s identity to treat them with respect and kindness.”

Such materials likely burden the rights of the objecting parents, he said. Montgomery County permits opt-outs for family life and human sexuality instruction, as required by state law.

“Courts rightly defer to schools, as a general matter, for curriculum decisions,” Quattlebaum said. “But not for decisions that burden the free exercise of religion in a way that is not both neutral and generally applicable.”

The parents are represented by the Becket Fund for Religious Liberty, which indicated they intend to appeal the ruling.

“The court just told thousands of Maryland parents they have no say in what their children are taught in public schools,” Eric Baxter, vice president and senior counsel at Becket, said in a statement. “That runs contrary to the First Amendment, Maryland law, the school board’s own policies, and basic human decency. Parents should have the right to receive notice and opt their children out of classroom material that violates their faith.”

A spokesman for Montgomery County public schools said the district does not comment on pending litigation.

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