Parents can't opt K-5 children out of LGBTQ curriculum: appeals court

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Maryland parents rally against gender-based curriculum

Montgomery County Public Schools parent Dawn Iannaco-Hahn and Deseret News contributing writer Bethany Mandel joined ‘FOX & Friends First’ to discuss the protest and how parents are fighting back against controversial curriculum.  

Maryland’s largest school district does not have to allow parents to opt their K-5 children out of classes and books that discuss LGBTQ topics like sexuality and gender, at least for now, a federal appeals court ruled on Wednesday.

The 2-1 ruling by the 4th U.S. Circuit Court of Appeals affirmed a lower court decision denying a preliminary injunction on the basis that the parents had not shown how the policy — initiated by the Montgomery County Public Schools (MCPS) board — would violate their children’s First Amendment right to free exercise of religion.

The parents had argued that refusal to provide an opt-out from their children’s exposure to LGBT-themed books and related discussions violates federal and state law.

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Parents protest the Montgomery County, Maryland, Public Schools system's "no opt-out" policy for certain LGBTQ+ books approved for the classroom last year. (Asra Normani)

Some of the book titles include "The Pride Puppy," "Uncle Bobby's Wedding" and "Born Ready: The True Story of a Boy Named Penelope." 

The parents argued that the books contradict their religious duty to train their children in accordance with their faith on "what it means to be male and female; the institution of marriage; human sexuality; and related themes."

The litigants — three sets of parents who are Muslim, Jewish and Christian, along with a parental rights organization — argue that the responsibility for what their children learn should fall to them, instead of the schools.

However, the court ruled that the mere exposure to ideas contrary to one’s faith is not enough of a burden to implicate the First Amendment and that exposure to issues that one disagrees with, even for religious reasons, is "part of the compromise parents make when choosing to send their children to public schools," the ruling states.

"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," U.S. Circuit Judge G. Steven Agee, a President George W. Bush appointee, wrote for the majority in the opinion.

"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."

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A Muslim activist, inset, speaks out at a Montgomery County, Maryland, Public Schools board of education meeting on June 27, 2023. (Fox News Digital)

U.S. Circuit Judge A. Marvin Quattlebaum, Jr., who was appointed by former President Trump, dissented, writing that he disagreed with the district court motion finding the parents failed to establish that the board burdened their First Amendment rights. 

"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.

"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."

Eric Baxter, a senior counsel and vice president at the Becket Fund for Religious Liberty which is representing the parents, tells Fox 5 DC that the group is disappointed with the decision and says the themes are inappropriate for students.  

"They involve issues around sexuality that are simply too mature for such young children," Baxter said. 

Baxter tells The Hill they plan to appeal the ruling.

"The court just told thousands of Maryland parents they have no say in what their children are taught in public schools," Baxter tells the publication. "That runs contrary to the First Amendment, Maryland law, the School Board’s own policies, and basic human decency."

MCPS, which is the wealthiest district in Maryland, announced in 2022 efforts to include an LGBTQ-inclusive reading list as part of its English language arts curriculum. The decision sparked several rallies pushing for the school district to put the opt-out policy back in place.

A large group of parents protested in Rockville, Maryland, last June in an effort to opt out of books that feature LGBTQ characters in Montgomery County schools. (Sarah L. Voisin/The Washington Post via Getty Images)

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Bethany Mandel, a mother and contributing writer for Deseret News, told "FOX & Friends First" last year that she believed it's a parent's right to tackle controversial topics, including sexuality and gender ideology, with their children on their own terms.

"Some of the books were first, second, third-grade read-aloud books about transgender ideology, about sexuality," Mandel told Carley Shimkus. "Some of the parents who spoke in favor of banning the opt-out said… 'I'm gay, and a book didn't make me gay and... There's no way that your child, if you shield them in this manner, can sort of operate in the outside world,' and that's not what anyone is asserting."

"No one thinks that our kids can turn gay by reading a book. What we're asserting is that children are best learning about these sort of tricky, sticky subjects from their parents, and their parents should have a right to determine how their kids are first introduced to this," she continued. 

Fox News' Bailee Hill, Bradford Betz and Lindsay Kornick contributed to this report.