A group of parents who unsuccessfully sued Montgomery County Public Schools (MCPS) for not having a policy to notify families when LGBTQ+ storybooks are used in the classroom and not allowing families to opt out is asking the U.S. Supreme Court to take on the case, according to a Friday news release from the parents’ attorneys.
“Parents shouldn’t have to take a back seat to anyone when it comes to introducing their children to complex and sensitive issues around gender and sexuality,” Eric Baxter, vice president and senior counsel at Becket Fund for Religious Liberty, the firm representing the parents, said in the release. “Nearly every state requires parental consent before high schoolers can attend sex-ed. Parents should have the right to excuse their elementary school children when related instruction is introduced during story hour.”
According to the parents’ Supreme Court petition, the legal question is “do public schools burden parents’ religious exercise when they compel elementary school children to participate in instruction on gender and sexuality against their parents’ religious convictions and without notice or opportunity to opt out?”
The Supreme Court is expected to decide whether to hear the case this fall, according to the release.
MCPS spokesperson Liliana Lopez said Friday the school system does not have statements to share on pending litigation.
The group first filed a federal lawsuit in May 2023, arguing against the county school board’s decision to incorporate LGBTQ+ inclusive storybooks into elementary school English language arts curriculum and its policy to not allow parents to opt out their children from instruction. The policy was first articulated by the school board in March 2023 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-out policy at that time, which stated that teachers would not notify or send a letter home to families when inclusive books are read in the classroom.
Three MCPS families filed the lawsuit against the school board and the MCPS superintendent alleging that the no-opt-out policy violated their constitutional right to religious expression and Maryland law. The lawsuit also alleged 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 2023, a federal judge denied a motion for an injunction that aimed to force MCPS to rescind its no-opt-out policy temporarily.
A U.S. Circuit Court of Appeals upheld the lower court’s decision to deny a request for a preliminary injunction in May. According to the ruling by the 4th Circuit Court of Appeals in Richmond, Virginia, the parents who filed the appeal of the lower court’s denial in the lawsuit 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.
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 of 2023. Parents have also continuously presented testimony at school board meetings urging the school district to offer the opt-out accommodation.
In November 2023, 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.”
The Montgomery County Education Association, which is the local teachers union, joined the ACLU National and its Maryland chapter, the MoCo Pride Center and other organizations in filing 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.”
Elia Griffin and Mishka Espey contributed to this report.
