The U.S. Supreme Court appeared poised on Tuesday to rule in favor of parents in Maryland who had raised religious objections to books that were made available in elementary schools within a school district and included stories about gay and transgender characters.
In his lifelong home of Montgomery County, Maryland, U.S. Supreme Court Justice Brett Kavanaugh reported being “surprised” during oral arguments on Tuesday in a case involving a school district and LGBTQ+ books.
The U.S. District Court of Maryland heard the case of Mahmoud v. Taylor on May 24, 2023, after parents of various religious backgrounds accused the Montgomery County Public Schools (MCPS) district in Rockville, Maryland, of requiring their pre-K and elementary-aged children to read contentious LGBTQ+ books.
Christian, Jewish, and Muslim parents are among the plaintiffs who claim that the school district’s removal of a “opt-out” option for parents who were uncomfortable with the reading choices in their children’s classes violated their right to religious expression and, consequently, their First Amendment rights.
The Montgomery County Board of Education unveiled more than 20 new “inclusivity” books for students in pre-K through eighth grade as part of their “Pride Storybooks” in the fall of 2022. The disclaimer was that parents would be notified when their children were reading these kinds of books, giving them the choice to choose not to have their children read them.
However, worried parents contend that the schools’ brief parent education was insufficient. The school board declared in 2023 that it would no longer notify parents or comply with requests to opt out. There are over 70,000 kids in the district.
The parents lost the lawsuit in May 2023. The Fourth Circuit Court of Appeals heard an appeal of that decision and, almost a year later, upheld the school board’s policy.
In September 2024, the U.S. Supreme Court heard an appeal of the decision from Becket, a nonprofit organization that defends religious expression in court. In January, the High Court consented to hear the case.
Below is a transcript of the notable exchange with Kavanaugh:
Kavanaugh: “The country has opt-outs for all sorts of things. The county has opt-outs for all sorts of things. The other Maryland counties have opt-outs for all sorts of things. And yet, for this one thing, they change in mid-year and say no more opt-outs. I’m just not understanding feasibility.”
SCHOENFELD: “So, again, I think what’s in the record is that, with respect to these books as they were deployed in the classroom, there was high absenteeism in some schools. For example, dozens of students being opted out in, I think Mr. Baxter said the average size of an elementary school in Montgomery County is 700 students, so each grade is 125. If you have dozens of students walking out, making arrangements for their students to have adequate space and supervision and alternative instruction, I think is infeasible. And that’s —“
Kavanaugh: “But they do it for all sorts of other opt-outs.”
SCHOENFELD: “They don’t do it for all sorts of other opt-outs. There’s a limited universe of things that students can opt out from. The family life and healthy sexuality curriculum stands alone. It is mandated by the state. It is something where you are able to predict precisely when the curriculum is going to be deployed. There’s a four —“
Kavanaugh: “It’s the most similar, substantively, to what we have here and there’s an opt out allowed there. I guess I’m not understanding why Montgomery County School Board stands alone, I think in the country. You can tell me if there’s another school board that’s done something like this.”
SCHOENFELD: “I don’t — I apologize.”
Kavanaugh: “The kind of books that are being used and prohibiting opt-outs, and I guess I’m just not understanding. The whole goal, I think, of some of our religion precedents is to look for the win-win, to look for the situation where you can respect the religious beliefs and accommodate the religious beliefs while the state or city, or whatever it may be, can pursue its goals. And here they’re not asking you to change what’s taught in the classroom. They’re not asking you to change that at all. A lot of the rhetoric suggests that they might have — that they were trying to do that, but that’s not what they’re trying to do. They’re only seeking to be able to walk out so that they don’t have — so the parents don’t have their children exposed to these things that are contrary to their own beliefs.”
SCHOENFELD: “I understand, your Honor, and there may well be circumstances where a school can —“
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