A federal court on Wednesday upheld a Maryland school district policy that does not allow parents to opt their young K-5 children out of curriculum about gender identity and sexuality.
In a 2-1 panel decision released by the U.S. Court of Appeals for the Fourth Circuit, federal judges affirmed a lower court decision denying the request of religious parents to block the policy issued by the Montgomery County Public Schools (MCPS) board in March of 2023. Judge G. Steven Agee, a President George W. Bush appointee, wrote the majority opinion stating that parents did not present enough evidence to show that the policy violates the free exercise of their religion and their due process right to direct their children’s education.
“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 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.”
The Muslim, Jewish, and Christian parents, represented by the Becket Fund for Religious Liberty, argued that the district’s refusal to allow their young children to opt out of reading of LGBTQQIAAP2S+-themed books or participation in the curriculum violated their right to raise their children in accordance with their faith and how their faith defines identity and sexuality. Parents also argued the material is not age-appropriate for such young students.
Book titles integrated into the K-5 curriculum include The Pride Puppy, Uncle Bobby’s Wedding, and Born Ready: The True Story of a Boy Named Penelope. The book The Pride Puppy — which is “the sole test expressly approved for use in pre-Kindergarten and Head Start classrooms” — invited “the three and four-year-old audience … to look for items such as “[drag] king,” “leather,” “lip ring,” “[drag] queen,” and “underwear,” the judge’s opinion notes.
Parents also pointed out that the district had provided guidance to teacher’s and staff on how to redirect concerns about the pro-LGBTQ+ content and questions from students.
The order details:
The guidance also counsels that if a student says that “a girl . . . can only like boys because she’s a girl,” the teacher can “[d]isrupt the either/or thinking by saying something like: actually, people of any gender can like whoever they like. . . . How do you think it would make __(character’s name)__ to hear you say that? Do you think it’s fair for people to decide for us who we can and can’t like?”
Even so, the panel ultimately ruled that “simply hearing about other views does not necessarily exert pressure to believe or act differently than one’s religious faith requires,” the opinion reads.
Judge A. Marvin Quattlebaum, Jr., who was appointed by former President Donald Trump, wrote a dissenting opinion saying he would have overturned the district court ruling and blocked the school district’s policy.
“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.
Amanda Darrow, director of youth, family and education programs at the Utah Pride Center, poses with books that have been the subject of complaints from parents in recent weeks on Thursday, Dec. 16, 2021, in Salt Lake City. (AP Photo/Rick Bowmer)
“I also find that the board’s actions, at least under this record, were neither neutral nor generally applicable. Finally, I find the parents have established the other requirements for a preliminary injunction. So, I would reverse the district court and enjoin the Montgomery County School Board of Education from denying religious opt-outs for instruction to K-5 children involving the texts,” he continued.
He added:
And I disagree with the majority’s conclusion that the parents have not produced enough evidence to establish that their free exercised rights have been burdened. The parents have met their burden. They have produced the books that no one disputes will be used to instruct their K-5 children. They produced declarations explaining in detail why the books conflict with their religious beliefs. They have produced the board’s own internal documents that show how it suggests teachers respond to students and parents who question the contents of the books.
“These parents’ faith dictates that they—not others—teach their children about sex, human sexuality, gender and family life. Their faiths dictate that they shield their children from teachings that contradict and undermine their religious views on those topics,” he wrote. “And no matter how you slice it, the board’s decision to deny religious opt-outs prevents the parents from exercising these aspects of their faith if they want their children to obtain a public education.”
Eric Baxter, a senior counsel and vice president at the Becket Fund for Religious Liberty told Fox 5 DC that the parents are disappointed with the decision. He noted that parents are not asking for the books to be removed from schools and just want the option for their young children to opt out.
“We understand that there are different parents who have different perspectives,” Baxter said. “But all parents should have the right to decide if something is inappropriate for their own child and to remove their child from the classroom in those circumstances. And I think that’s something that every resident in Montgomery County can get behind.”
Baxter said they plan to appeal the case to the Supreme Court.