When the Montgomery County school district in Maryland adopted several LGBTQ+ storybooks for use in its elementary schools, it initially allowed requests from parents to keep their children out of lessons using the books.
But by March of the 2022-23 school year, the opt-out policy became “unworkable,” the district says. The number of parents seeking exemptions surged, and administrators believed the requests, besides being difficult to manage in the classroom, were undermining the district’s goals of offering inclusive lessons. So, the district ended the opt-out option.
That decision has led to a showdown in the U.S. Supreme Court, which will hear arguments next week in a case brought by parents with religious objections to the books, who argue the lack of flexibility interferes with their First Amendment right of free exercise of religion.
Supporters of the district, meanwhile, say a decision in Mahmoud v. Taylor in favor of the parents could open up the nation’s public schools to a wide range of religious excusals from lessons and school policies.
“People are going to have lots of objections to curricular decisions, and it’s a question of who should make the determination—school officials in consultation with parents or federal judges,” said Justin Driver, a Yale University law professor and a preeminent expert on education law.
A Supreme Court ruling allowing such challenges under the First Amendment’s free exercise of religion clause will “open the floodgates of litigation,” he said.
LGBTQ+ storybooks available for various classroom uses
The 160,000-student Montgomery district, located just north of Washington, is high-achieving and culturally diverse. A few years ago, district leaders had grown concerned that its off-the-shelf English/language arts curriculum did not reflect that diversity.
“The books used in its existing ELA curriculum were not representative of many students and families in Montgomery County because they did not include LGBTQ characters,” Niki T. Hazel, the district’s associate superintendent for curriculum, said in a 2023 court declaration. “The LGBTQ-Inclusive books were thus introduced following a years-long process that engaged parents, community members, students, teachers, and staff.”
The seven books originally purchased for the 2022-23 school year were Born Ready; Intersection Allies; Love, Violet; My Rainbow; Pride Puppy!; Prince & Knight; and Uncle Bobby’s Wedding—all featuring LGBTQ+ characters and themes.
The books were placed on classroom shelves and used at teachers’ discretion for literature circles, reading groups, and other instructional purposes, the district says.
The district later reevaluated My Rainbow and Pride Puppy! and removed them from classrooms. It hasn’t elaborated on what went into that decision, but Pride Puppy!, a book aimed at 3- and 4-year-olds, drew controversy from some quarters for asking readers to search, on pages of an LGBTQ+ pride parade, for images including “underwear,” “leather,” “lip ring,” and references to drag performers.
Despite the removal, the parents continue to highlight Pride Puppy! in their court filings.
“The book invites students barely old enough to tie their own shoes” to search for such inappropriate images, says the parents’ Supreme Court brief.
The district counters that the parents “distort” a book—no longer part of the curriculum—and have implied “a salacious bent” to the search-and-find word lists.
The district, which declined an interview request, emphasizes in its Supreme Court brief that it respects religious diversity and allows individual students to pray privately at school, to miss school for religious observances, and for parents to excuse their children from family life and human sexuality instruction.
By March 2023, however, the district said the number of opt-out requests from the LGBTQ+ books had become “unworkable.”
“Some schools … experienced unsustainably high numbers of absent students,” the district says in its brief. “All schools faced substantial hurdles in using the storybooks while honoring opt-out requests. Teachers would have to track opt-outs, manage the removal of students from class, and plan alternative activities for excused students.”
Hazel, the associate superintendent, said in her court declaration that officials were further concerned “when some students are permitted to leave the classroom whenever language arts lessons draw on books featuring LGBTQ characters, students who believe that the books represent them or their families are exposed to social stigma and isolation.”
Parents have concerns about books’ messages on gender and sexuality
Religious parents—many Muslim, Roman Catholic, and Ethiopian Orthodox—petitioned the Montgomery County school board to reverse the decision, but were unsuccessful. A group of parents sued based on the First Amendment’s free exercise of religion clause.
Tamer Mahmoud and Enas Barakat, a Muslim married couple with three children in the district’s schools, said in a court declaration that they respect other parents’ decisions about sexuality and gender identity, but their faith recognizes only male and female sexes. (Becket declined to make its clients available for interviews with Education Week.)
“We believe there are detrimental spiritual consequences from letting authoritative figures such as schoolteachers teach our children principles concerning sexual and gender ethics that contravene well-established Islamic teachings,” Mahmoud and Barakat say in their court filing.
They asked their 2nd grade son’s principal to offer an alternative assignment anytime his teacher used one of the storybooks, but the principal declined, citing the district’s decision to end the opt-outs.
“Forcing our son to participate in reading these books and engaging in related discussions would confuse his religious upbringing,” the parents said.
Jeff and Svitlana Roman, a married couple who are Roman Catholic and Ukrainian Orthodox, respectively, made a similar opt-out request for their 2nd grade son in 2023, but were also denied.
“We believe that much of what is taught via the pride storybooks is false religiously and scientifically,” the Romans said in their declaration. “Issues of sexuality and gender identity are complex and sensitive. Our son is not old enough to be thinking about many of the issues presented in the books MCPS is requiring him to read, and would find them confusing.”
All of the challenging parents lost in both a federal district court and a federal appeals court in their efforts to obtain a preliminary injunction to reinstate the opt-outs. They appealed to the Supreme Court, which agreed to take up the case.
A reliance on a 1972 Supreme Court decision involving the Old Order Amish
Lawyers for the parents say they should not be placed in a position where their only alternative to instruction that offends their religious values is to pull their children from the public schools.
“There’s a long tradition of letting parents direct the religious upbringing of their children and another long tradition, especially when it comes to sensitive topics, of states and local governments largely letting parents opt out of instruction that would come into conflict with the their obligation to raise their children in accordance with their faith,” said Colten L. Stanberry, a lawyer with the Becket Fund for Religious Liberty, a Washington-based non-profit legal organization that is representing the parents.
Stanberry and other Becket lawyers argue that there is a national consensus when it comes to parental control over teaching children about gender and sexuality, reflected in widespread opt-outs offered for sex education lessons in public schools, including in Montgomery County.
The parents and their allies, which include the Trump administration and some well-known religious liberty scholars, rely heavily on Wisconsin v. Yoder, the 1972 case in which the high court held that the Old Order Amish could not be compelled to send children to school beyond 8th grade.
Unlike the Amish, the Montgomery County parents are not asking for their children to leave school—just to be excused from a handful of storybook lessons that would “confound their religious values.” Yet they say the same legal principle should apply.
Douglas Laycock, a law professor emeritus at both the University of Texas at Austin and the University of Virginia, filed a friend-of-the-court brief along with several other prominent religious liberty scholars in support of the parents. He said Yoder recognized that exposing schoolchildren to “worldly influences in terms of attitudes, goals, and values” could burden the free-exercise rights of parents.
“These are pretty appealing facts for the conservative justices who probably want to reverse” the lower courts, he said. “I think we’re going to get a new rule here.”
District and its allies point to lower-court precedents rejecting parental challenges to curriculum
The Montgomery County district argues that neither the use of the storybooks nor the lack of opt-outs burdens anyone’s religion.
The “very limited” court record, it says, shows only that students were exposed “to ideas that clash with their parents’ religious beliefs"—not subjected to “instruction (much less indoctrination) on gender or sexuality.”
Supporters of the school district highlight a long record of lower federal court decisions that have rejected parents’ religious challenges to public school curricular materials. They include an often-cited 1987 decision by a federal appeals court that ruled against an objection to a storybook about a girl reading a recipe to a boy for him to prepare a meal. A parent objected to that for communicating the idea that there were no God-given roles for the different sexes.
Other challenges rejected by lower courts included objections to a book series featuring wizards and sorcerers (pre-Harry Potter), a social studies curriculum that some parents alleged disparaged Hinduism, and a science curriculum that discussed the Big Bang theory.
“Lower courts have witnessed numerous free-exercise objections over the years and have rebuffed those, with the notion being that the public schools get to teach what they wish, and it would be simply unmanageable and unworkable for educators to have to craft bespoke lesson plans for individual students,” said Driver of Yale Law School, who submitted a friend-of-the-court brief supporting the Montgomery County school district.
Richard B. Katskee, a Duke University law professor who joined a separate brief of constitutional scholars supporting the district, argues that a decision for the parents here would create “religious disharmony and discord across the nation.”
It would be unlikely that curricular opt-outs could be limited to the narrow categories of gender and sexuality, and could even lead to some parents seeking to excuse their children from lessons on activities such as critical thinking, anti-drug abuse, or Earth Day, he said.
As a parent himself of two children in Montgomery County schools, Katskee believes the messages of inclusion and different kinds of families the storybooks provide are an important one.
“There are LGBTQ people in the world,” and allowing many students to opt out of the storybooks’ lessons would send a message of exclusion to those students who are part of that community, he said.
“It is deeply harmful to the kids and families,” Katskee said, “and it is deeply harmful to the very idea of public school.”
The case is set for argument on April 22, with a decision expected by late June.
