The Supreme Court indicated Tuesday it would rule in favor of a group of parents who sued a suburban Maryland school board over its refusal to allow parents of elementary school children to opt out of classes with LGBTQ-themed storybooks.
Plaintiffs argue that the school system in Montgomery County, just outside Washington, DC, cannot require children to sit through lessons involving the books if their family has religious objections.
“The [school] board does not dispute that under its theory, it could compel instruction using pornography, and parents would have no rights,” argued Eric Baxter, an attorney for parent Tamer Mahmoud.
“The First Amendment demands more. Parents, not school boards, should have the final say on such religious matters.”
Montgomery County Public Schools (MCPS) approved certain LGBTQ-themed curriculum books in late 2022. Initially, MCPS allowed an opt-out for parents with religious concerns, but by March of 2023, it reversed course, citing concerns about absenteeism and administrative burdens.
A group of parents from Muslim, Roman Catholic and Ukrainian Orthodox faiths, sued the school district, arguing the lack of an opt-out system trampled upon their religious rights as parents.
Both a federal judge and the 4th U.S. Circuit Court of Appeals previously backed the school board in denying a preliminary injunction sought by the parents. The 4th Circuit concluded the plaintiffs needed to show that their children were being coerced to act differently than their religious beliefs.
“We don’t have to decide whether you get the opt-out,” conservative Justice Amy Coney Barrett mused at one point. “We just have to decide if the 4th Circuit accurately defined what a burden is.”
Later, Barrett expressed concerns that the LGBTQ-laced classroom instructions aren’t merely trying to expose students to different ideas, but are about trying to impress upon students that “this is the right view of the world” and “how you should think about things.”
At times, some of the conservative justices sounded uneasy about the content of some of the books in question.
“That’s the one where they were supposed to look for the leather and bondage things like that,” Justice Neil Gorsuch asked about the “Pride Puppy” book for pre-K students, which was later removed from the curriculum by the board.
“Pride Puppy” is a picture book aimed at three- and four-year-olds that instructs kids to look for items they might find at a gay pride parade, such as underwear, lip rings, drag kings, and late gay liberation activist Marsha Johnson, whom critics noted was once a sex worker.
Many of the books that rattled parents delved into transgenderism. For instance, “Intersection Allies,” for K-5 students, explains transgender and non-binary concepts, while asking the question, “What pronouns fit you?”
“What Are Your Words?” tells students in a similar age range that one’s pronouns can “change like the weather” and follows one child who briefly embraces “they/them” pronouns.
In “Born Ready,” a little boy gets confused about how his sister is transitioning into a boy, prompting the mother to inform him that “not everything needs to make sense.”
The board provided teachers with guidance to inform students that “not everyone is a boy or girl,” according to the plaintiffs.
“Do you think it’s fair to say that all that is done in ‘Uncle Bobby’s Wedding’ is to expose children to the fact that there are men who marry other men?” Justice Samuel Alito asked Baxter, before answering his own question.
“The book has a clear message, and a lot of people think it’s a good message, and maybe it is a good message, but it’s a message that a lot of people who hold on to traditional religious beliefs don’t agree with.”
MCPS attorney Alan Schoenfeld argued that the school system already provides parents with ample opportunity to provide input.
“The school board here is democratically elected,” he contended. “The entire process of adopting this curriculum is open and transparent. These books are on review for 30 days before they’re even made part of the curriculum. There’s then a multi-level appeal process.
“There’s plenty of opportunity for parental insight.”
Justice Brett Kavanaugh said at one point that he was “a bit mystified, as a lifelong resident of the county, how it came to this.”
“The other Maryland counties have opt-outs for all sorts of things,” the justice added.
Schoenfeld explained that there had been “dozens of students walking out” of classes and that schools were struggling to figure out the logistics of alternative spaces and supervision for them.
“They don’t do it for all sorts of other opt-outs,” the attorney countered. “There’s a limited universe of things that students can opt out from.”
“The plaintiffs here are not asking the school to change its curriculum,” Alito rejoined. “They’re just saying, ‘Look, we want out.’ Why is that not feasible? What is the big deal about allowing them to opt out of this?”
Schoenfeld sought to impress upon the high court that schools across the country teach a variety of lessons that conflict with parents’ beliefs.
“Children encounter real and fictional women who forego motherhood and work outside the home,” he said. “Children read books valorizing our nation’s veterans who fought in violent wars. Each of these things is deeply offensive to some people of faith.”
Liberal justices seemed particularly concerned about redefining the “burden” definition.
“How do we make very clear that the mere exposure to things that you object to is not coercion?” Justice Sonia Sotomayor asked Baxter at one point.
Justice Ketanji Brown Jackson stressed that parents “can choose to put their kid elsewhere” and are not required to send their children to public schools if they disagree with what is being taught.
“I guess I’m struggling to see how it burdens a parent’s religious exercise if the school teaches something that the parent disagrees with,” she admitted. “You have a choice, you don’t have to send your kids to that school.”
Jackson also listed a series of hypotheticals — such as a gay teacher talking to children about their spouse or transgender students — and got Baxter to admit that he probably would not support an opt-out in those scenarios.
Justice Elena Kagan suggested attorneys for the parents “did not want to draw lines” on where an opt-out would not be honored.
“You’re still not giving me anything other than if it’s in a school and a sincere religious parent has an objection, that objection is always going to result in an opt-out, no matter what the instruction is like,” she vented.
The Supreme Court is expected to hand down a decision in Mahmoud v. Taylor by the end of June.
