A divided federal appeals court on Wednesday rejected a bid by a group of Maryland parents to force a school district to allow them to opt their elementary school children out of being assigned to read books that include LGBTQ characters.
A 2-1 panel of the Richmond, Virginia-based 4th U.S. Circuit Court of Appeals held that the parents had not demonstrated how the Montgomery County Board of Education’s book policy would burden anyone’s rights to freely exercise religion.
The parents’ lawyers at the Becket Fund for Religious Liberty had objected to a curriculum for pre-K and elementary school-aged children that included books that portray gay, transgender and non-binary characters in various situations.
The parents, who are Muslims, Christians and Jews, argued alongside the parental rights organization Kids First that by not providing an opt-out option, the board’s policy infringed their religious rights under the U.S. Constitution’s First Amendment.
But U.S. Circuit Judge G. Steven Agee, writing for the majority in Wednesday’s opinion, said the record was “threadbare” as to how teachers were actually using the books in their classrooms and what children were being taught from them.
Agee, an appointee of Republican former President George W. Bush, said such information was key for the parents to establish that the lack of an opt-out option was interfering with their children’s religious education.
“At present, however, no evidence in the record connects the requisite dots between the Parents’ children’s ages or mental capacity and their unknown exposure to the Storybooks to conclude that the Parents have already shown that a cognizable burden exists,” he wrote.
Agee’s opinion was joined by U.S. Circuit Judge DeAndrea Benjamin, an appointee of Democratic President Joe Biden.
U.S. Circuit Judge A. Marvin Quattlebaum, Jr., an appointee of Republican former President Donald Trump, dissented, saying in his view, the board violated the parents’ First Amendment right to direct the religious upbringing of their children.
Eric Baxter, a lawyer for the parents at Becket, in a statement promised a further appeal. “The court just told thousands of Maryland parents they have no say in what their children are taught in public schools,” he said.
Alan Schoenfeld, a lawyer for the school board at Wilmer Cutler Pickering Hale and Dorr, did not respond to a request for comment.
At issue was a set of LGBTQ-inclusive storybooks that the board in 2022 approved for use in Montgomery County Public Schools’ curriculum.
Those books included “Pride Puppy!” an alphabet book by Robin Stevenson about a dog who gets lost amid a Pride parade, and “Born Ready: The True Story of a Boy Named Penelope,” a story by Jodie Patterson about her transgender son’s experience.
Parents could originally opt children out of reading the books, but the board abandoned the opt-out option with the 2023-2024 school year, prompting the lawsuit.
When a lower-court judge declined to issue a preliminary injunction, the six parents appealed.
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