U.S. Supreme Court to hear MCPS parents’ LGBTQ+ books ‘opt-out’ case

Plaintiffs in Mahmoud v. Taylor want to require MCPS to notify families about use of such content in class

January 17, 2025 4:16 p.m.

Editor’s note: This story, originally published Jan. 17 at 4:16 p.m., was updated Jan. 17 at 4:49 p.m., to add statements from MCPS, the Montgomery County school board president and the Becket Fund for Religious Liberty. It was updated again on Jan. 17 at 5:52 p.m. to include statements from Mark Eckstein and the MoCo Pride Center.

The U.S. Supreme Court announced Friday that it will hear the case brought by 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, the Washington Post first reported.

The parents asked the Supreme Court to take on the case in September, after a U.S. Circuit Court of Appeals upheld a lower court’s denial of a preliminary injunction in May 2024. 

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“Cramming down controversial gender ideology on three-year-olds without their parents’ permission is an affront to our nation’s traditions, parental rights and basic human decency,” Eric Baxter, vice president and senior counsel at Becket Fund for Religious Liberty, the firm representing the parents, said in a Friday press release.  “The Court must make clear: parents, not the state, should be the ones deciding how and when to introduce their children to sensitive issues about gender and sexuality.” 

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.

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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.

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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.”

In an October 2024 forum prior to the general election, two of the newly elected board members, Laura Stewart (Dist. 4) and Natalie Zimmerman (Dist. 2), said they didn’t support opting out of curriculum, saying that students needed to learn about others in a diverse community. Rita Montoya (At-large), the third newly elected board member, didn’t explicitly say if she supported opting out, but said kids needed to learn to engage with all people and see themselves represented in books.

MCPS spokesperson Liliana López said in an email Friday that MCPS can’t comment on pending litigation. Montgomery County school board President Julie Yang told Bethesda Today on Friday that she would have to review the case, but the board’s philosophies haven’t changed.  

Local LGBTQ+ advocates voiced their disappointment with the court’s decision to take up the case Friday evening.

“The ramifications are chilling and it brings to mind the past when parents felt they had the ‘parental right’ to opt-out their child from learning about Evolution,” Mark Eckstein, the lead on LGBTQ+ issues for the Montgomery County Council of PTAs (MCCPTA), wrote to Bethesda Today in a text Friday evening.

Phillip Alexander Downie, CEO of the MoCo Pride Center, a local organization that provides resources, services and events for Montgomery County’s LGBTQ+ community, said in an email statement to Bethesda Today on Friday evening that the organization agrees with the school system’s current policy and that it is important for students to be exposed to LGBTQ+ books.

“LGBTQIA+ inclusive books provide critical opportunities for students to see themselves and their peers reflected in the curriculum, which is vital to creating safe, supportive learning environments. Public education should equip students to thrive in diverse communities and prepare them for an interconnected world,” Downie wrote. “Policies that allow for opting out of inclusive materials undermine these principles and risk marginalizing our most vulnerable youth. We stand with MCPS in ensuring every student has access to an education that affirms their identity and values diversity.” 

Downie encouraged community members who are concerned about the potential removal of LGBTQ+ books from schools to share their views with elected officials.

“If you’re passionate about supporting inclusive education and want to make your voice heard, we encourage you to speak up at an upcoming school board meeting or reach out to your school officials,” Downie wrote.

Elia Griffin and Mishka Espey contributed to this report.

 

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