This article, originally published at 4:05 p.m. May 15, 2024, was updated at 5:11 p.m. May 15, 2024, to add a statement from the Board of Education. It was updated at 11:10 a.m. May 16, 2024, to add statements from the American Civil Liberties Union and to clarify the religious faiths of families that protested against the no opt-out policy. It was updated at 3:20 p.m. on May 16, 2024, to add comments from the Becket Fund for Religious Liberty.
A U.S. Circuit Court of Appeals has upheld a lower court’s decision to deny a request for a preliminary injunction that would have required Montgomery County Public Schools to notify parents and allow families to opt out when LGBTQ+ storybooks are included in the curriculum and instruction.
According to the ruling released Wednesday by the 4th Circuit Court of Appeals in Richmond, the parents who filed the appeal of the lower court’s denial in the lawsuit, Mahmoud v. McKnight, against the school system did not provide enough evidence to support their request.
The parents “have not come forward with sufficient evidence of cognizable burden on their free-exercise rights,” the ruling said in part.
The appeals court would need “more specific information” about how the storybooks are implemented in the classroom and “the parents have not shown that the [Board of Education’s] failure to provide notice and an opt-out opportunity creates a likelihood of violating their free-exercise rights,” Judge Steven Agee wrote in the ruling.
Eric Baxter, Vice President and Senior Counsel at the Becket Fund for Religious Liberty, the nonprofit law firm that filed the lawsuit with the families, said he was “disappointed” with the decision but hopeful about their chances of an appeal.
“The next step is the Supreme Court,” he said. “And we’re hopeful that the Supreme Court will be reading the case sometime in the coming year.”
Board of Education communications coordinator Christie Scott said in an email Wednesday that the board was pleased with the court’s decision to “uphold MCPS’ ability to determine the curriculum for Montgomery County students.”
MCPS spokesperson Chris Cram said in an email Wednesday that he had not seen the ruling. “We could not comment on ongoing litigation,” he said.
In a press release, the American Civil Liberties Union (ACLU) called the ruling a “victory for inclusion and diversity in public education.”
“During a time of intensifying calls to ban books and limit access to information about LGBTQ+ people and identities, this ruling in support of inclusion in education matters,” Deborah Jeon, legal director for the ACLU of Maryland, said in the release.
The lawsuit was first filed in May 2023 and argues against the Montgomery County Board of Education’s decision to incorporate LGBTQ+ inclusive storybooks into elementary school English language arts curriculum and its policy not to allow parents to opt out their student from instruction.
Three MCPS families filed the lawsuit against the school board and superintendent alleging that the no-opt-out policy violates their constitutional right to religious expression and Maryland law. It also alleged that the inclusive books promote “political ideologies about family life and human sexuality that are inconsistent with sound science, common sense, and the well-being of children.”
In August, a federal judge denied a motion for an injunction that aimed to force MCPS to rescind its no-opt-out policy temporarily. The policy was first articulated by Board of Education in March after the district decided to add six new LGBTQ+ inclusive books to its supplemental curriculum for pre-K through fifth grade.
MCPS revised the opt-opt policy in March 2023, which said that teachers would not notify or send a letter home to families when inclusive books are read in the classroom.
After the suit was filed, county families of various faiths — including Islam, Orthodox Christianity and Catholicism — protested the decision outside the school board headquarters multiple times in the summer. Parents have also continuously presented testimony at school board meetings urging the school district to offer the opt-out accommodation.
In November, Maryland Attorney General Anthony G. Brown – joined by a coalition of 18 other U.S. Attorneys General – filed an amicus brief in support of MCPS’ decision to incorporate the inclusive texts and not allow parents to opt out their student from instruction. The brief stated that the school district’s policy does not violate the Constitution or Maryland law and emphasized the attorney general’s support for “safety and inclusion for LGBTQ+ youth in schools.”
ACLU National and its Maryland chapter, the MoCo Pride Center, and the local teacher’s union (the Montgomery County Education Association) are among the organizations that filed amicus briefs in support of the district as well.
MCPS issued a statement on the ruling after the preliminary injunction was first denied, which cited the judge’s reasoning that “public schools are not obliged to shield individual students from ideas which potentially are religiously offensive, particularly when the school imposes no requirement that the student violate his or her faith during classroom instruction.”
This story will be updated.
