“Judges said parents failed to show Montgomery County Public Schools likely violated their free-exercise or due process rights.”
Why this is important: Muslim and Christian parents in Maryland are suing the state regarding their inability to opt-out of the elementary school curriculum. They argue that their inability to do so violates both the First and 14th Amendments, which include their right to determine the religious upbringing of their children.
In October 2022, the Montgomery County Board of Education (Board) announced that it, through its regular curriculum process, approved a group of LGBTQ-inclusive books as part of the English Language Arts curriculum. Although the individual contents vary, the books as a whole express their authors’ views on sexual orientation and gender identity through characters in different situations. Teachers were given wide latitude as to how and when to use the books although they were not able to elect to refrain from their use. Teachers also were provided with supporting materials to assist them in responding to potential questions the books might generate.
Initially, parents/caregivers were provided with notice and the ability to opt-out through agreements with individual principals and teachers. If the opt-out was elected, the teacher was to find a substitute book with the same language arts standards and objectives. However, in March 2023, the Board announced that a notice and opt-out option was no longer permitted although old requests were grandfathered. Apparently, individual schools could not accommodate the growing number of opt-out requests (many of which the Board claims were not religious in nature) without causing significant disruptions to the classroom. For instance, students were initially excused from class if the books were read aloud. This quickly became infeasible for teachers. Thus, the 2023-2024 academic year was the first full year where no notice or opt-out option was available.
Almost immediately some parents, teachers, and administrators began voicing concerns about the appropriateness of the books. Some were based on religious grounds. Others were based on claims that the books had age-inappropriate content in that some words used were not defined. Some parents/caregivers then sought to have their children exempted from the books believing that the books constituted an effort to teach students about sex, lessons about LGBTQ issues, or other age-inappropriate issues.
Eventually, six parents and an association called “Kids First” sued the Board over its refusal to provide notice and an opportunity to opt-out of their children’s exposure to certain books and related discussions, alleging that these actions violated state and federal law. The parents requested a preliminary injunction requiring the Board to provide the requested notice and opt-out option. When the district court denied their motion, the parents appealed to the U.S. Court of Appeals for the Fourth Circuit. Twenty-three states, religious organizations, and other groups filed amicus briefs in support of the parents while 19 states, the American Civil Liberties Union, other civil rights organizations, and various Maryland educational associations filed amicus briefs in support of the Board.
On appeal, the Fourth Circuit took no position on whether the parents would be able to present sufficient evidence to support their claims. Given the early stage of the litigation, the parents’ broad claims, and the high burden to obtain a preliminary injunction, the Fourth Circuit could only look at what they called the “scant” record before them on appeal. In doing so, the court noted that the record below provided little explanation of how the books were integrated into the larger collection of books offered as part of the Language Arts curriculum. Ultimately, the Fourth Circuit determined there was no evidence at present to demonstrate that the failure to provide an opt-out compels the parents or their children to change their religious beliefs or conduct. Thus far, the parents have not shown that the Board decision affects what they teach their own children. As such, the Fourth Circuit affirmed the district court order denying the preliminary injunction.
Although the parents did not meet their burden to obtain a preliminary injunction, this case is still in its early stages. As the Fourth Circuit opinion makes clear, the issues underpinning this litigation are far from over. --- Lisa M. Hawrot
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