The Courts and the Culture War

Posted: September 12, 2023 /

Maryland District Court Rejects Parental Challenge To School Policy Barring Opt-Out Of LGBTQ-Themed Elementary School Curriculum

For today’s back-to-school edition, we consider a case pitting parental rights against school LGBTQ policies. In Mahmoud v. McKnight, Civ. No. DLB-23-1380, 2023 WL 5487218 (D. Md. Aug. 23, 2023), the district court rejected the plaintiff-parents’ efforts to opt out of instruction in LGBTQ-themed books.  We also catch up with the appeal in John and Jane Parents 1 v. Montgomery County Bd. of Educ., a case discussed in our March 7, 2023 blog post, in which parents also mounted a losing challenge to school transgender policies.  Coincidentally or not, both cases arise from the Montgomery County Maryland school district, outside Washington, DC.

The LGBTQ K-5 English Curriculum:  22 Books And A Teachers Guide

At issue in Mahmoud v. McKnight is a policy barring parents from opting out of instruction in “over 22 LGBTQ+ inclusive texts” included in the elementary school English curriculum.  2023 WL 5487218, at *2.  A few representative books were: Love, Violet, about “a child’s effort to connect with her same-sex crush”; Prince & Knight, the “story of a young prince who falls in love with and marries a male knight;” and Born Ready: The True Story of a Boy Named Penelope, “about an elementary-aged child who experiences triumphs and frustrations in convincing others what the child knows to be true—that he’s a boy, not a girl.”  Id. at *2.   

Guidance to teachers on how to respond to parents questioning the appropriateness of the books at times reflected viewpoints of the transgender movement.  It was suggested that teachers convey to parents, for example, that the teaching is meant “to show that there is no one ‘right’ or ‘normal’ way to be, “ and that by “learning about the diversity of gender, children have an opportunity to explore a greater range of interests, ideas, and activities….”  Id. at *5-6.  Teaching materials also included suggested answers to student comments reflecting traditional views of the sexes, through which, for example, “teachers might try to ‘disrupt the either/or thinking,’” explain that using the word gay in a negative way “reflects a long history of prejudice against LGBTQ+ people”, or explain that “when we’re born people make a guess about our gender and label us ‘boy’ or ‘girl’ based on our body parts.”  Id. at *7.

Plaintiffs’ Claimed Violation Of Free Exercise And Substantive Due Process Rights

Plaintiffs are Muslim and Catholic parents of elementary school children who objected to use of the books as in conflict with their religious duties to raise their children in accordance with their religious faith, the teachings of which conflicted with the books’ viewpoints on sex, sexuality, and gender identity.  In general, the parents objected to “the introduction of concepts of gender identity, sexuality, and transgenderism to their elementary-aged children” and believed the “books promote one-sided transgender ideology, encourage gender transitioning, and focus excessively on romantic infatuation.”  Id. at *5.  The parents noted that the resource guide for one of the books was from the Human Rights Campaign, an advocacy group, and that the teaching guide suggested explaining that determination of biological sex is based on a “guess” about gender made at birth.  See id. at *5. Because the children are young and impressionable, the parents argued that instruction in the books would interfere with the parents’ abilities to raise their children according to their religious faiths.   Id. at *5. 

The parents challenged the no opt-out policy as a violation of their free exercise and substantive due process rights.  The court rejected both challenges and denied the parents’ motion for a preliminary injunction that sought to prevent the school board from changing the existing policy allowing for opt outs from instruction in the books to a no op-out policy.

Court Says The No-Opt Out Policy Is Not Likely To Result In Indoctrination

For a government policy to violate the Free Exercise Clause, it “must burden religious exercise,” but even then “it still may be “constitutionally permissible” if the policy “survives the requisite level of judicial scrutiny.”  Id. at *14.  Before addressing the correct level of scrutiny, the court considered the “threshold question” of whether the no opt out policy would burden the parents’ religious exercise at all.  Id. at *15.  To establish burden, a plaintiff must show a “coercive effect of the enactment as it operates against him in the practice of his religion.”  Id. *15. Coercion may be direct or indirect.   Direct coercion “is the express prohibition of conduct required by faith or the compulsion to perform conduct prohibited by faith.”  Id. *15. “Indirect coercion exists when government action places substantial pressure on an adherent to modify his behavior and violate his beliefs.”  Id. at *15 (cleaned up).

Citing multiple appellate and district court decisions, the court concluded that “the mere exposure in public school to ideas that contradict religious beliefs does not burden the religious exercise of students or parents.”  Id. at *16.  That is 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.”  Id. at *16. 

But were the parents alleging “mere exposure” to ideas?  Concluding not, the court proceeded to consider whether the complaint alleged coercion through indoctrination, that is, whether, as framed by the First Circuit in one of the few cases to consider this theory, the school board’s teaching of the LGBTQ-themed books “’put pressure on their children to endorse an affirmative view of” the curriculum’s sex and gender-related teachings “’and thus has undercut the parents’ efforts to inculcate their children with their own opposing religious views.’”  Id. at *17 (quoting Parker v. Hurley, 514 F.3d 87, 106 (1st Cir. 2008)).

The court concluded there was no coercion through indoctrination, comparing the egregious case of Tatel v. Mount Lebanon School District, 637 F. Supp. 3d 295 (W.D. Penn. 2022), to what the court found to be more benign facts here. In Tatel, the teacher had told students her teachings about gender identity were right and their parents could be wrong; “advocated her own agenda and beliefs about gender identity;” “engaged in a consistent, multi-pronged, year-long effort to convince her first-grade students to believe her views on gender and, in some cases, to change their gender identities;” and “encouraged them not to discuss her instruction with their parents.” Mahmoud, 2023 WL 5487218 at *20.  In this case, by contrast, even though “some of the books may be viewed as endorsing particular viewpoints,” the books “are still a small subset of many books” within the English curriculum and are not a “constant stream of like materials.”  Id. at *21. The court also gave weight to the absence of both an express requirement “that the student[s] agree with or affirm” the books’ views on the topics” and punishment “if they refuse to do so.”  Id. at *21.  Finally, “even if one or two of the suggested answers” to student questions “could be interpreted to promote a particular view as correct,” the answers were not required and other suggested answers did not promote a particular view.  Id. at *21.  Accordingly, use of the books did not “cross[] the line from permissible influence to potentially impermissible indoctrination,” and “the Court need not decide whether indoctrination burdens religious exercise.”  Id. at *21.

The court quickly dispatched the parents’ substantive due process claim, concluding based on Fourth Circuit precedent that “the plaintiffs’ asserted due process right to direct their children’s upbringing by opting out of a public-school curriculum that conflicts with their religious views is not a fundamental right,” and that rational basis scrutiny therefore applied.  The parents argued that strict scrutiny applied and did not dispute that the no opt-out policy would survive rational basis review.  Id.  

Under the court’s analysis what, exactly, distinguishes permissible “influence” from impermissible “indoctrination”?  If 22 books and a few suggestive teaching guide answers are not enough, how about 30 books and, say, six teaching guide answers that promote the Human Rights Campaign’s viewpoint?  The court’s “we-know-it-when-we-see-it” standard will encourage school boards to put to the test how much ideology is too much.

Fourth Circuit Punts On Merits Of School Board’s Policy Of Withholding Transgender Socialization From Parents

As our March 7, 2023 blog post discussed, in John and Jane Parents 1 v. Montgomery County Bd. of Educ., the district court rejected a parental challenge to a school board policy allowing schools to develop a “gender support plan” without the knowledge or consent of the student’s parents, and to withhold information on students’ gender presentation from parents deemed unsupportive.  The district court dismissed their substantive due process and other claims for failure to state a claim, determining that the policy of withholding information from parents about their children’s gender transition did not violate the parents’ right to control their children’s care and upbringing.  In an August 14, 2023 decision, the Fourth Circuit concluded that the parents lacked standing because, although the children were subject to the policy, the parents did not allege that any of their children had gender support plans, had had any discussions with school officials about gender identity issues, or had information withheld from them.  Thus, the parents had no “certainly impending injury or a substantial risk of future harm.”  John & Jane Parents 1 v. Montgomery Cnty. Bd. of Educ., No. 22-2034, 2023 WL 5184844, at *5 (4th Cir. Aug. 14, 2023).  Rather, their claims depended on “a speculative fear, the occurrence of which requires guesswork as to the actions of others,” including their children becoming transgender and approaching the school about a gender support plan, then the school deeming the parents unsupportive and withholding information from them.  Id.  Accordingly, the court ordered that the complaint be dismissed for lack of subject matter jurisdiction.

Judge Niemeyer dissented, arguing that the majority construed the parents’ due process claim too narrowly.  According to him, the parents’ claim was that the school was “taking over [their] rightful position” and “intentionally hindering them from counseling” their own children on matters of lifelong consequence, with the result that “important decisions about gender, sex, care, and growth and related matters, including any potentially related medical issues, are pulled from the family circle to the exclusive purview of the State.”  Id. at *14.  The policy therefore implicated, “in a meaningful and, indeed, shocking way,” the parents’ substantive due process rights, thereby giving rise to allegations of constitutional injury or substantial risk of such injury.  Id. at *15. On the merits, Judge Niemeyer concluded that the district court erred in analyzing the dispute as one over the parents’ ability to have a say in curricular matters—since the gender transition policy at issue did not relate to the curriculum—and would have held that the complaint stated a substantive due process claim for violation of the parents’ “fundamental liberty interest in the care custody, and control of their children.”  Id. at *18 (cleaned up).