Supporters, opponents of MCPS opt-out case rally outside U.S. Supreme Court

As arguments began in the U.S. Supreme Court in a case pitting Montgomery County Public Schools (MCPS) against parents who believe their religious freedoms are being violated by a district policy regarding LGBTQ+ books, those representing both sides rallied outside the courthouse in Washington, D.C., on Tuesday morning.

Dozens of LGBTQ+ community members and allies in colorful attire had gathered, many holding rainbow umbrellas to shield the group from potential pushback from opponents. The MoCo Pride Center, an organization that promotes health, well-being and offers services and social events for the local LGBTQ+ community, hosted the rally in support of MCPS.

“Inclusive education is not a political slogan. It is a human right,” said Phillip Alexander Downie, CEO of MoCo Pride Center, told the crowd. “It is the promise that every young person, regardless of race, gender, identity, ability, religion, language or family background, deserves to feel safe, valued and seen in the classroom.”

The organization, which partnered with local and national organizations, including the National Women’s Law Center and PEN America, was joined in support by several local elected officials.

“Our system of public education provides a place where young people can experience and be exposed to different viewpoints, people of different beliefs, all that are reflected in our community,” Montgomery County Council President Kate Stewart (D-Dist. 4) said. “We need to do better. Our schools need to be places of joy, safety and visibility.”

The Becket Fund for Religious Liberty, the law firm supporting the plaintiffs, hosted its own rally just steps away in partnership with Kids First, a local organization advocating on behalf of the plaintiffs.

“These are our children, and we have rights as parents,” Family Rights for Religious Freedom leader and MCPS parent Wael Elkoshairi said. “When they speak about inclusion, they need to include faith communities.”

Elkoshairi led the crowd at the group’s rally in several chants of “our children, our decision” and “voice for the voiceless.”

The case before the court was brought by a group of parents who unsuccessfully sued 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 court said in January that it would hear the case, which 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.

The group filed a federal lawsuit in May 2023, arguing against the county school board’s decision to incorporate LGBTQ+ inclusive storybooks into the English language arts curriculum in elementary schools 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 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 arguments

According to the briefs submitted to the Supreme Court, the lawyers representing the parents argue that the school’s opt-out policy forces parents to keep children in school under instruction that infringes on their religious freedoms or to seek other education options such as expensive private schools or homeschooling. The parents’ lawyers argue that a previous case has established that public schools can’t interfere with the “right of parents to direct the religious upbringing of their children.”

“Children in elementary school are at the most formative stage of their lives and are highly impressionable and vulnerable to peer pressure — especially on such potent and religiously laden topics as gender and sexuality,” the brief argues.

In the brief, the parents’ lawyers note the school board allows for opt-outs for sexual education in middle and high school, but denies opt-outs for the LGBTQ+ storybooks for elementary schoolers. The brief also points out that some principals expressed concerns about “whether staff had been sufficiently trained on how to utilize the books and whether some of the materials are age-appropriate.”

On the other side, lawyers for MCPS argue that there’s consensus that parents’ religious freedoms aren’t infringed upon when their children are exposed to curriculum materials the parents might find offensive.

“MCPS is not barring anyone from public school on the basis of their religious beliefs

or practice,” the MCPS brief argues. “For example, MCPS has not adopted a rule that parents cannot send their children to MCPS schools if they provide religious education to their children that conflicts with lessons that MCPS provides.”

MCPS also argues that the books don’t include instruction on sexual orientation or gender identity. The books are to be used like any other storybook included in the English Language Arts (ELA) curriculum and teachers weren’t instructed to “inject any views about gender or sexuality into classroom discussions about the storybooks,” the brief says.

“MCPS made clear from the beginning that the storybooks were to be used in the same way as any other book in the ELA curriculum: placed on a shelf for students to find on their own; offered as an option for literature circles, book clubs, or reading groups; or used for read-alouds,” according to the brief.

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

“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, an MCPS parent and local LGBTQ+ advocate, wrote to Bethesda Today in a text in January.

Earlier this month, Maryland Attorney General Anthony Brown (D) and 18 other Democratic state attorneys general filed an amicus brief in support of MCPS, which argues that the district’s policies fall within state and local governments’ authority to shape public education and inclusive environments for students. 

“All students deserve to learn in classrooms where they feel safe and respected, regardless of their sexual orientation or gender identity,” Brown said in a statement. “When public schools teach from LGBTQ+-inclusive books, they create a culture where all students can feel comfortable and accepted, fostering a learning environment that allows them to thrive.”  

Other organizations also have authored amicus briefs in support of the district, including the American Civil Liberties Union (ACLU) and the National Education Association (NEA), the Maryland State Education Association (MSEA) and the Montgomery County Education Association (MCEA), alongside other education organizations. The amicus brief filed jointly by the NEA, MSEA, MCEA and other education organizations argues that exposure to LGBTQ+-inclusive books doesn’t burden the right to free exercise of religion.

Amicus briefs were also filed against MCPS, including one co-led by Virginia Attorney General Jason Miyares and West Virginia Attorney General John McCuskey, who were joined by attorneys general from 24 other states. The brief argues that parents have a right to guide their children’s education, religious upbringing and the right to opt-out from “exposing their young children to sex education that violates their religion.”

Another brief filed by 35 Republican Maryland legislators argues that MCPS is subverting state regulations that allow parents to opt out of sex education in public schools by including the LGBTQ+ books in its English language arts requirement.

Defending their positions

As the rallies continued Tuesday morning outside the court, Del. Jared Solomon (D-Dist. 18), who represents Chevy Chase and Kensington in the Maryland General Assembly, also spoke in support of MCPS.

“It’s not about indoctrination. It’s not about coercion. It is about inclusion and making sure everybody feels welcome,” Solomon said. “It’s about making sure that you see yourself in the diverse society, that, frankly, is one of the best things about living in Montgomery County.”

A local drag performer, Ricky Rose, read Jack, Not Jackie by Erica Silverman, one of the books being challenged, aloud to the crowd of MCPS supporters.

Rosalind Hansen, a leader with far-right group Moms for Liberty, spoke in support of the plaintiffs.

“These books aren’t neutral stories about inclusion and kindness, they blur biological facts and leave kids especially confused,” Hansen said, “It affects our children’s mental health. It undermines our faith, and it forces families, many of whom are gathered here today, to make impossible decisions.”

Billie Mocus, an MCPS parent, said it is “wicked” for MCPS to teach anything contrary to the Bible and the teachings of Jesus Christ.

“We will not compromise the truth of Jesus. We will not compromise the truth of the Bible,” Mocus said. “We will not let political agendas destroy our families, and we will not sit back as our children are led into confusion. Let our kids be kids.”

Bethesda Today’s Elia Griffin and Mishka Espey contributed to this report.