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.
  • Save to favorites
  • Print

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.

See Also

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.

Events

This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Artificial Intelligence Webinar
Managing AI in Schools: Practical Strategies for Districts
How should districts govern AI in schools? Learn practical strategies for policies, safety, transparency, as well as responsible adoption.
Content provided by Lightspeed Systems
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Reading & Literacy Webinar
Unlocking Success for Struggling Adolescent Readers
The Science of Reading transformed K-3 literacy. Now it's time to extend that focus to students in grades 6 through 12.
Content provided by STARI
Jobs Virtual Career Fair for Teachers and K-12 Staff
Find teaching jobs and K-12 education jubs at the EdWeek Top School Jobs virtual career fair.

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

Law & Courts Appeals Court Halts Ruling Letting Teachers Disclose Students' Gender Identity
A federal appeals court has temporarily paused enforcement of the ruling but has not yet decided whether to grant a longer-term stay.
Kristen Taketa, The San Diego Union-Tribune
3 min read
Students carrying pride and transgender flags leave Great Oak High School in Temecula, Calif., on Sept. 22, 2023, after walking out of the school in protest of the Temecula school district policy requiring parents to be notified if their child identifies as transgender.
Students carrying pride and transgender flags leave Great Oak High School in Temecula, Calif., on Sept. 22, 2023, after walking out of the school in protest of the Temecula school district policy requiring parents to be notified if their child identifies as transgender.
Anjali Sharif-Paul/The Orange County Register via AP
Law & Courts Schools Can’t Bar Teachers From Telling Parents If Kids Are Transgender, Judge Rules
The injunction bans any public school employee from misleading parents about their child’s gender presentation at school.
Kristen Taketa, The San Diego Union-Tribune
5 min read
Teacher’s aide Amelia Mester, wrapped in a Pride flag, urges Escondido Union High School District not to have employees notify parents if they believe a student may be transgender in November 2025. A policy on the issue in the city’s elementary school district is the subject of a federal class-action lawsuit in which a judge just sided against the district.
Teacher’s aide Amelia Mester, wrapped in a Pride flag, urges Escondido Union High School District not to have employees notify parents if they believe a student may be transgender. A policy on the issue in the city’s elementary school district is the subject of a federal class-action lawsuit in which a judge just ruled against the district.
Charlie Neuman for The San Diego Union-Tribune/TNS
Law & Courts Federal Appeals Court Upholds 8th Grader's Expulsion Over Gun Comments in Class
Shortly after a nearby mass school shooting, a student allegedly discussed bringing a gun to school.
3 min read
Photo of stone columns.
E+
Law & Courts Trump's Education Policies Spurred 72 Lawsuits in 2025. How Many Is He Winning?
The legal challenges show which policies have had a big impact and how 2026 could go.
5 min read
President Donald Trump holds up an executive order after signing it at an indoor Presidential Inauguration parade event in Washington, Jan. 20, 2025.
President Donald Trump holds up an executive order after signing it at an indoor presidential inauguration parade event in Washington on Jan. 20, 2025. Trump's executive actions prompted legal challenges virtually from the moment he took office, and education-related policies were not immune.
Matt Rourke/AP