Court Denies Preliminary Injunction on Use of Books with LGBTQ+ Characters in School District
Posted on October 26, 2023
Important Takeaways: A United States District Court denied a preliminary injunction, finding that a school district’s policy that did not allow parents to opt their children out of instruction involving books with LGBTQ+ characters likely did not violate free exercise or substantive due process rights.
Facts: Parents filed a lawsuit seeking to opt their children out of reading and discussion of books with lesbian, gay, bisexual, transgender, and queer characters because the books’ messages contradict their sincerely held religious beliefs about marriage, human sexuality, and gender. In October 2022, the Montgomery County Public Schools (MCPS) Board of Trustees (School Board) adopted books featuring LGBTQ+ characters as part of their approved curriculum, but parents could opt their children out of participating in instruction involving these books. For the upcoming school year, the School Board decided that no parents would receive advanced notice of when these books would be used and would not be able to opt their children out of that curriculum. Three families filed a lawsuit alleging the no-opt-out policy violated their rights and their children’s’ rights to free speech and free exercise and the parent’s substantive due process rights. The parents sought a preliminary injunction that would require notice of when books relating to family life and human sexuality would be used in the curriculum and a chance for parents to opt their child out of that instruction.
In October 2022, the School Board announced that over 22 LGBTQ+ books would be approved for use in the classroom. This was to further their interest in promoting diversity, equity, and nondiscrimination. The parents alleged that state law requires MCPS to provide an opt-out opportunity from those books because they concern family and human sexuality. The School Board argued that the books are part of its English language arts curriculum and do not require an opt-out because the opt-outs are only required for family life and human sexuality instruction, which is a separate curriculum. The Maryland law requires school systems to provide a comprehensive health education that includes concepts and skills related to family life and human sexuality and that the instruction must represent all students regardless of ability, sexual orientation, and gender expression. Maryland law further requires school systems to provide parents an opportunity to view instructional materials to be used in the teaching of family life and human sexuality objectives and Maryland allows for opt-outs from such instruction. The MCPS School board also adopted an opt-out policy for parents and students who have religious objects to MCPS classroom instruction or activities.
Each of the three groups of parents who filed the suit stated why the books conflicted with their deeply held religious beliefs. The parents also objected to specific parts of books they believed were inappropriate for young children, including a book about a pride parade that included words like drag queen, drag king, leather, and underwear. The parents argued the books promote an ideologically one-sided view of issues contrary to their faiths and understanding of scientific evidence.
MCPS alleged that all teachers would be free to incorporate the books into the curriculum as they wanted. MCPS argued that there was no planned explicit instruction on gender identity and sexual orientation in elementary school and no child is asked to change how they feel about these issues. The School Board had three concerns with the opt-out policy: high student absenteeism, infeasibility of managing numerous opt-outs, and exposure of students whose families were represented in the books. The School Board believed that allowing an opt-out defeated the efforts to ensure the classroom environment is safe and conducive to learning for all students. They feared this would make MCPS non-compliant with state and federal nondiscrimination laws. Due to these concerns, the School Board stopped allowing opt-outs of instruction involving these books.
In order to get a preliminary injunction, the party asking for the injunction must show four things. How likely it is that the party seeking the injunction would be successful in a lawsuit on the issue, they are likely to suffer irreparable harm if the injunction, that their interest outweighs the other parties’ interest, and there is a public interest in granting the injunction. The parties in this case agreed that the only factor the court had to analyze in this case was the likelihood that the party seeking the injunction would be successful in the case on the merits.
On the free exercise claim, the court explained that for a court to find free exercise violations based on public-school curricula, the curricula challenged must involve more than exposure to ideas and must require conduct that conflict’s with the students’ faith. The Court explained that none of the parents in this case could show that the lack of an opt-out policy coerced students or parents into violating their religious beliefs or that the no-opt-out policy would result in the indoctrination of their children. A free exercise violation is predicated on coercion, which the parents here could not show. Since the parents would be unlikely to succeed on the merits of their free exercise claim, a preliminary injunction was not granted on these grounds.
On the substantive due process, the court evaluated the policy under rational basis review. Under rational basis, the parents would have to show that the challenged policy is not rationally related to a legitimate state purpose. The policy does serve the School Board’s legitimate interest in fostering social integration and cultural inclusiveness of transgender and gender-nonconforming students. The policy also furthers the interest of preventing students who identify with the characters in the books from feeling stigmatized or discriminated against. The Court held that since the parents were unlikely to succeed on the merits of the due process claim, a preliminary injunction should not be granted on those grounds either.
The Court also denied granting a preliminary injunction pending appeal of this ruling.
What this means: In Maryland, school districts can maintain policies that allow the use of books with LGBTQ+ books without an opt-out option for parents if the curriculum is not coercing students to take any actions. A curriculum that simply introduces ideas likely does not violate free exercise or due process. This case is likely to be appealed to the 4thCircuit Court of Appeals. As more states pass laws similar to Maryland’s and more schools adopt opt-out or no-ot-out policies, these issues will continue to be litigated in different circuits and likely will be litigated in the 9th Circuit, where Montana is located.
Read it here: Mahmoud v. McKnight, U.S. District Court for the District of Maryland, August 24, 2023. Read it here
As you consider these and other issues, we recommend you speak with your school lawyer or contact Bea, Megan, Beth, and Kevin at 406-542-1300 to discuss these issues.
