The U.S. Supreme Court agreed Friday to hear an appeal from a group of Montgomery County parents challenging a school system policy that does not let them opt their lower elementary school children out of classes that use LGBTQ+ books.
Parents, who have lost repeatedly in lower courts, have argued that the books interfere with their religious liberty rights by exposing their young children to gender and sexuality norms that conflict with their religion.
Their Supreme Court appeal has drawn supportive legal filings from a range of religious groups and conservative legal scholars.
But the county said in filings with the court that the books were not part 0f a coercive effort, but were merely available in the reading materials available to children in lower grades.
The lower courts that sided with the school system were simply upholding “decades-old consensus that parents who choose to send their children to public school are not deprived of their right to freely exercise their religion simply because their children are exposed to curricular materials the parents find offensive,” the county said.
The court, without comment, said in an order released Friday afternoon that it would hear the case, Mahmoud v. Taylor. No hearing date has been set, but arguments are likely to be scheduled for later this spring with a decision before the justices recess this summer.
A Montgomery County schools spokesperson said Friday the system would not comnent on the court’s decision to take the case. But in a statement from the Becket Fund, the law firm representing the parents, opponents of the policy hailed the chance to make their case again, after more than two years of futility.
“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,” said Eric Baxter, a vice president and senior counsel at Becket.
The dispute began almost three years ago,in the 2022-23 school year, when the county unveiled a list of “LGBTQ+-inclusive texts for use in the classroom,” including books for grades as low as kindergarten and pre-K.
Title challenged by the parent include “My Rainbow,” abouta mother who creates a rainbow-colored wig for her transgender child; “Uncle Bobby’s Wedding,” about a girl worried that an uncle’s wedding means she will lose time with him, until his boyfriend befriends her; and “Pride Puppy,” about a puppy lost at a Pride parade. The book, for pre-K and kindergarten, goes through each letter of the alphabet, describing people the puppy might have met at the parade, inviting student to search for drag kings and queens, lip rings, leather, underwear and other items, according to court documents.
School officials said in court filings in lower courts that the books were not part of “explicit instruction on gender identity and sexual orientation in elementary school, and that no student or adult is asked to change how they feel about these issues.” The books were merely added to the county’s list of reading materials to better represent the county’s entire population and to “include characters, families, and historical figures from a range of cultural, racial, ethnic, and religious backgrounds,” documents say.
School system officials have said that teachers are expected to make the books available in the classroom, recommend them as appropriate for particular students or offer them “as an option for literature circles, book clubs, or paired reading groups; or to use them as a read aloud” in class.
Parents who objected were originally allowed to opt their children out of lessons that included the books. But the school system in March 2023 said opt-outs would not be allowed, beginning in the 2023-24 school year. Parents are allowed to opt their children out of parts of sex education, but not other parts of the curriculum, like language arts.
The parents sued, arguing that refusing to let them take their kids out of the classes infringed on their First Amendment freedom of religion rights.
In their petition to the Supreme Court, they said the policy exposed the children to gender and sexuality norms that contradict their religious beliefs. The policy gives parents — who include Muslim, Catholic and Ukrainian Orthodox families — “no protection against forced participation in ideological instruction by government schools,” the petition said.
The parents said they are not trying to ban the books in Montgomery County schools, but merely seeking the ability to keep their children out from being exposed to ideas that conflicted with their firmly held religious beliefs.
So far, the underlying elements of the case have not been heard, merely the parents’ request for a preliminary injunction of the school system’s opt-out policy, which the parents have repeatedly lost. That fact was noted by the county, which said “there is no pressing issue here” that can’t be worked out by letting the case proceed in regular course through the lower courts.
A federal district judge in August 2023 denied the parents’ request for a preliminary injunction and a divided panel of the 4th U.S. Circuit Court of Appeals upheld that ruling in May 2024, writing that the parents had not met the high burden of showing that they were likely to win on their claim that the lack of an opt-out policy was actually coercing them to abandon part of their faith.
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The majority opinion, written by Circuit Judge G. Steven Agee, said that because the record in preliminary injunction hearings was extremely sparse, the parents had not been able to “connect the requisite dots” to show that a burden on their First Amendment rights existed.
While the parents had shown that the books “could be used in ways that would confuse or mislead children and, in particular, that discussions relating to their contents could be used to indoctrinate their children into espousing views that are contrary to their religious faith. … none of that is verified by the limited record that is before us,” Agee wrote.
“Should the Parents in this case or other plaintiffs in other challenges to the Storybooks’ use come forward with proof that a teacher or school administrator is using the Storybooks in a manner that directly or indirectly coerces children into changing their religious views or practices, then the analysis would shift in light of that record,” Agee wrote.
The fact that parents might feel forced to forgo a public school education and pay for private school was not sufficiently coercive to be a burden on the parents’ First Amendment rights, based on the record so far, he wrote.
In a dissent, Circuit Judge A. Marvin Quattlebaum Jr. said parents had met their burden for a preliminary injunction while the case was heard.
“Both sides of the issue advance passionate arguments. Some insist diversity and inclusion should be prioritized over the religious rights of parents and children. Others argue the opposite,” Quattlebaum wrote.
But the parents have made the case for an injunction of the opt-out policy for now, he wrote.
“The parents have shown the board’s decision to deny religious opt-outs burdened these parents’ right to exercise their religion and direct the religious upbringing of their children by putting them to the choice of either compromising their religious beliefs or foregoing a public education for their children,” Quattlebaum wrote. “I would … enjoin the Montgomery County School Board of Education from denying religious opt-outs for instruction to K-5 children involving the texts.”
Grace Morrison, a board member of Kids First, an organization of parents and teachers fighting for an opt-out policy, said the current system “has pushed inappropriate gender indoctrination on our children.” She welcomed the high court’s decision to take up the case.
“I pray the Supreme Court will stop this injustice, allow parents to raise their children according to their faith, and restore common sense in Maryland once again,” Morrison said in the Becket Fund statement.
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