US District Court rules Montgomery County Public Schools’ “No-Opt Out” policy for LGBTQ+ Inclusive Books does not violate children’s religious beliefs

no opt out policy discussion lgbtq+ books

United States District Court for Maryland: While considering the instant lawsuit filed by parents of elementary-aged children attending Montgomery County Public Schools seeking the ability to opt their children out of reading and discussion of books with LGBTQ+ characters because the books’ messages contradict their sincerely held religious beliefs about marriage, human sexuality, and gender; the bench of Deborah L. Boardman, J.*, denied the parents’ motion stating that the sine qua non of a free exercise claim is coercion, and the plaintiffs have not shown the no-opt-out policy likely will result in the indoctrination of their children or otherwise coerce their children to violate or change their religious beliefs. The Court opined that the “no-opt-out” policy does not prevent the parents from exercising their religious obligations or coerce them into forgoing their religious beliefs.

The Court noted that the “no-opt out” policy serves the School Board’s legitimate interest in “fostering social integration and cultural inclusiveness of transgender and gender non-conforming students” by ensuring all MCPS students are exposed to inclusive and representative instructional materials. It also helps prevent students who identify with characters in the storybooks from feeling stigmatized or discriminated against when other students leave the room when the books are read, furthering the School Board’s interests in providing a safe and supportive learning environment for its students, protecting LGBTQ students’ health and safety, and complying with anti-discrimination laws.

Background: The Montgomery County Public Schools (MCPS) last year incorporated into its English language arts curriculum a collection of storybooks featuring LGBTQ characters, in an effort to reflect the diversity of the school community.

At first parent could opt their children out of reading the books, as they could with other parts of the curriculum. However, in March of this year, the School Board announced that parents no longer would receive advance notice of when the storybooks would be read or be able opt their children out.

Following the announcement, three families of diverse faiths filed suit against the School Board, claiming that the “no-opt-out policy” violates their and their children’s free exercise and free speech rights under the First Amendment, the parents’ substantive due process rights under the Fourteenth Amendment, and Maryland law.

The parents thus moved for a preliminary injunction that requires the School Board to give them advance notice and an opportunity to opt their children out of classroom instruction that involves the storybooks or relates to family life and human sexuality.

Objections raised by the parents: The parents who filed the suit belong to diverse religious groups who believe that all persons should be respected regardless of sex, gender identity, sexual orientation, or other characteristics. However, they raised religious objections to the storybooks and presented before the District Court their respective religious beliefs vis-à-vis gender identity and sexual orientation.

The parents contended that the storybooks introduced by the curriculum go far beyond teaching kindness and respect,” to the point of imposing an ideological view of family life and sexuality that characterizes any divergent beliefs as ‘hurtful’. They further expressed their belief that the books encourage children to question their sexuality and gender, ignore important differences between men and women, approve gender transitioning, focus prematurely on romantic relationships and sexuality, and dismiss parental and religious guidance on these issues.

Court’s Assessment:

The Court addressed the question that whether parents had established that the no-opt-out policy burdens their religious exercise. The Court noted that the ordinary meaning of prohibiting the free exercise of religion’ was (and still is) forbidding or hindering unrestrained religious practices or worship. It was pointed out that this case involves objections to a public-school curriculum and every court that has addressed the question has concluded that the mere exposure in public school to ideas that contradict religious beliefs does not burden the religious exercise of students or parents because- (1) students were not required to behave contrary to their faiths or affirm any views contrary to their religious beliefs, and (2) parents were not prevented from discussing and contextualizing any contrary views at home. “When courts have found free exercise violations based on public-school curricula, the challenged curricula involved more than exposure to ideas. The curricula required conduct that conflicted with students’ faiths”.

The Court pointed out that the parents have not shown that the no-opt-out policy likely will result in the indoctrination of their children. “To be sure, the topics in the storybooks the plaintiffs find objectionable-gender identity, transgenderism, and same-sex marriage-outnumber the single objectionable issue (same-sex marriage) in the two books in Parker. And some of the books may be viewed as endorsing particular viewpoints, like one of the books in Parker that the court”. However, the Court pointed out that the storybooks are still a small subset of many books used in the MCPS English language arts curriculum; they are not a “constant stream of like materials”.

Taking note of one of the objection raised by one the parent that the curriculum “forced their son to violate Islam’s prohibition of prying into others’ private lives” and its discouragement of “public disclosure of sexual behaviour” if his teacher were to ask him to discuss “romantic relationships or sexuality”, the Court pointed out that forcing a child to discuss topics that his religion prohibits him from discussing goes beyond the mere exposure to ideas that conflict with religious beliefs. It was stated that nothing in the current record suggests the child will be required to share such private information. “Based on the evidence of how teachers will use the books, it appears discussion will focus on the characters, not on the students”.

The Court also noted that while some instructional guidance seems to encourage student introspection, none encourages students to share their personal experiences or to discuss their or their families’ romantic relationships, gender identities, or sexuality.

The Court further pointed out that the parents’ inability to opt their children out of reading and discussion of the storybooks does not coerce them into violating 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. 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.

It was further pointed out that the parents did not cite any case that has recognized a free exercise claim based on government action that reduces the likelihood of meeting a sacred obligation. “Such a finding would seem to contravene the Supreme Court’s guidance that the Free Exercise Clause cannot be used to require the Government itself to behave in ways that the individual believes will further his or her spiritual development or that of his or her family.”

The Court stated that with or without an opt-out right, the parents remain free to pursue their sacred obligations to instruct their children in their faiths. Even if their children’s exposure to religiously offensive ideas makes the parents’ efforts less likely to succeed, that does not amount to a government-imposed burden on their religious exercise. The Court further stated that the no-opt-out policy does not pressure the parents to refrain from teaching their faiths, to engage in conduct that would violate their religious beliefs, or to change their religious beliefs. The policy may pressure them to discuss the topics raised by the storybooks with their children, but those discussions are anticipated, not prohibited, by the parents’ faiths. The parents are not pressured into violating their religious beliefs in order to obtain the benefits of a public education.

[Tamer Mahmoud v. Monifa B. McKnight, Civ. No. DLB-23-1380, decided on 24-08-2023]

*Judgment delivered by Justice Deborah L. Boardman

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