Court rejects parents' attempt to opt kids out of LGBTQ-inclusive reading assignments

A federal appeals court rejected a bid from a group of Maryland parents to require Montgomery County Public Schools to allow them to opt their children out of lessons that involve LGBTQ-inclusive material.

A divided three-judge panel of the 4th U.S. Circuit Court of Appeals affirmed a lower court decision denying a preliminary injunction on the basis that the parents had not yet demonstrated how the country’s board of education book policy would infringe on their right to free expression of religion.

Three sets of parents – who are Muslim, Jewish and Christian – along with a parental rights organization, sued the Maryland school district after it said it would no longer allow parents to opt their children out of lessons that used a slate of newly approved LGBTQ-inclusive books.

The parents argued that the books “contradict their sincerely held religious beliefs about marriage, human sexuality, and gender” and that the lack of an opt-out policy violates their children’s First Amendment right to free exercise of religion.

U.S. Circuit Judge G. Steven Agee, writing for the majority in the opinion, said there was not enough evidence on the record to assess how the books were being used in the classroom and, therefore, to assess the likelihood of the case succeeding.

“We take no view on whether the Parents will be able to present evidence sufficient to support any of their various theories once they have the opportunity to develop a record as to the circumstances surrounding the Board’s decision and how the challenged texts are actually being used in schools,” Agee, appointed by former President George W. Bush, wrote.

“At this early stage, however, given the Parents’ broad claims, the very high burden required to obtain a preliminary injunction, and the scant record before us, we are constrained to affirm the district court’s order denying a preliminary injunction,” he continued, in the opinion, which was joined by U.S. Circuit Judge DeAndrea Benjamin, an appointee of President Biden’s.

U.S. Circuit Judge A. Marvin Quattlebaum, Jr., an appointee of former President Trump’s, dissented, arguing the board violated parents’ right to influence their children’s religious upbringing.

Eric Baxter – vice president and senior counsel at the Becket Fund for Religious Liberty, which is representing the parents – pledged to appeal the ruling on Wednesday, in an emailed statement to The Hill.

“The court just told thousands of Maryland parents they have no say in what their children are taught in public schools,” Baxter said in his statement. “That runs contrary to the First Amendment, Maryland law, the School Board’s own policies, and basic human decency.”

“Parents should have the right to receive notice and opt their children out of classroom material that violates their faith. We will appeal this ruling,” he added.

In August 2023, U.S. District Judge Deborah Boardman found that the parents were unlikely to succeed on the merits and denied their request to keep the policy in place while the case proceeds. She found that they failed to show that the lack of an opt-out policy would result in the “indoctrination of their children” or “coerce their children to violate or change their religious beliefs.”

“The parents still may instruct their children on their religious beliefs regarding sexuality, marriage, and gender, and each family may place contrary views in its religious context,” Boardman wrote in the order last year.

“No government action prevents the parents from freely discussing the topics raised in the storybooks with their children or teaching their children as they wish,” she added.