As gender identity and sexual orientation have become important talking points in modern society, some teachers and school administrators have sought to incorporate these discussions into curricula. Meanwhile, some parents and legislators who feel these discussions are not appropriate for the classroom are taking legal action against it. One of the biggest cases surrounding LGBTQ+ education for youth has been looming before the U.S. Supreme Court.
Although the battle isn’t over yet, SCOTUS recently handed down a ruling that sided with the religious rights of parents.
Storybooks for Inclusive Education
Many conservative states have already passed laws banning K-12 teachers from teaching pro-LGBTQ+ values in their classrooms, most notably, Florida. However, the legal landscape is varied, and more progressive states are going in the opposite direction.
Montgomery County, Maryland, is one of the most religiously and culturally diverse counties in the U.S. In 2022, the Montgomery County Board of Education determined its English Language Arts curriculum lacked representation of the many LGBTQ+ individuals and families living there, so it decided an update was needed. Motivated by a commitment to inclusivity and equity, the Board adopted a “Critical Selection Repertoire” for new books, asking questions like: “Is heteronormativity reinforced?” and “Are power hierarchies that uphold the dominant culture reinforced?” The goal was to foster a more inclusive environment and respect for all students, especially those from marginalized communities. After a review process, the Board approved thirteen LGBTQ+ inclusive texts for students from pre-K through 12th grade.
For elementary students, five storybooks became the focus of public attention and legal dispute. One tells the story of a young girl whose favorite uncle is marrying his boyfriend, exploring her initial concerns but ultimately celebrating family love and acceptance. Another follows a prince who rejects traditional expectations to marry a princess, instead falling in love with a brave knight after they defeat a dragon together, with their wedding celebrated by the entire kingdom. A third centers on a shy girl with a crush on her female classmate. A fourth introduces children from a variety of backgrounds, including a transgender child who prefers gender-neutral pronouns. The fifth recounts the journey of a child who is initially treated as a girl but knows he is a boy, addressing skepticism from others and emphasizing that love and acceptance matter most.
Opt-out Policy Unsustainable
Initially, the Board allowed parents to opt their children out of lessons involving these storybooks, consistent with guidelines on respecting religious diversity. However, as opt-out requests increased, the Board found that accommodating so many absences caused significant classroom disruptions, so they decided to stop giving notifications and allowing opt-outs.
The LGBTQ+ programming at issue was not part of any sex education, health, or anatomy class. The books were part of English classes, used primarily to instruct children in reading. Although parents can opt their students out of sex ed-type classes, there is no such opt-out for most required classes such as English. The books contained no “explicit” content, nor were the discussions about human anatomy or details of sexual relationships.
The decision to end the opt-outs sparked strong objections from three sets of parents with children in Montgomery County elementary schools. The parents were Muslim, Catholic, and Ukrainian Orthodox, and argued that the storybooks contradicted their religious teachings on marriage, sexuality, and gender. They believed that exposing their children to these messages undermined their efforts to raise their children according to their faith.
Parents Sue School Board
These families joined with other parents and teachers to form an association called Kids First. After unsuccessful attempts to persuade the Board to restore opt-outs, the parents and Kids First collectively brought a lawsuit against the Board and its members.
The plaintiffs’ legal theories rested on both constitutional and statutory grounds. They claimed the Board’s policy violated their constitutional rights to free exercise of religion and parental control over their children’s upbringing. The case was brought in federal court because the main claims were based on alleged violations of the U.S. Constitution, specifically the First Amendment’s Free Exercise Clause and the Fourteenth Amendment’s Due Process Clause. Although the plaintiffs also included a claim under Maryland law, federal courts can exercise supplemental jurisdiction over related state law claims.
Ultimately, the plaintiffs sought a permanent injunction requiring the Montgomery County School Board to (1) give them advance notice of when the “LGBTQ+ inclusive” storybooks would be used in classroom instruction and (2) allow them to opt their children out of that instruction or related to family life and human sexuality. In the short run, they sought a preliminary injunction because they were concerned that, without immediate relief, their children would be exposed to instruction they believed violated their religious rights before the court could decide the case. Only the preliminary injunction, so far, made its way to the Supreme Court.
Legal Arguments
The parents’ claims under the Free Exercise Clause asserted that exposure to materials contrary to their religious beliefs about marriage, gender, and sexuality placed a substantial burden on their religious exercise. Under the Fourteenth Amendment's substantive due process right, they argued that parents have a fundamental right to direct their children’s upbringing and education. The parents urged the court to apply strict scrutiny, relying on Wisconsin v. Yoder, and contended that the policy was not neutral or generally applicable because opt-outs were permitted elsewhere in the curriculum.
The school board defended its policy as neutral and generally applicable, noting that no students could opt out for any reason. The board argued that mere exposure to ideas did not constitute a burden on religious exercise, especially since students were not required to affirm or act on the storybooks’ messages. The board also cited administrative challenges and the risk of stigmatizing LGBTQ+ students as justifications for the policy.
Both the district court and Fourth Circuit denied the parents’ request for a preliminary injunction. While the broader questions about a permanent injunction were still being litigated, the plaintiffs appealed the denial of the preliminary injunction to the U.S. Supreme Court. In a majority opinion joined by the Court’s six conservative justices, the parents got their injunction, at least for now.
SCOTUS Finds Comparable Precedent
Justice Alito, writing for the majority, held that the Board’s introduction of LGBTQ+ inclusive storybooks, combined with its decision to withhold parental notice and deny opt-outs, substantially interfered with parents’ right to direct the religious upbringing of their children. He found that this policy imposed the kind of burden on religious exercise that the First Amendment’s Free Exercise Clause prohibits, especially when the curriculum is presented in a way that is “hostile” to the parent’s religious beliefs and exerts psychological pressure on children to conform.
The majority rejected the Board’s argument that the policy was mere “exposure to objectionable ideas.” Alito wrote that the books were “unmistakably normative” and “designed to present certain values and beliefs as things to be celebrated, and certain contrary values and beliefs as things to be rejected.”
A central question was which level of scrutiny should apply. Since earlier cases had dealt with similar facts, a big debate was about what precedent should or shouldn’t apply, most importantly around the 1972 case of Wisconsin v. Yoder. In that case, SCOTUS held that Amish parents had a constitutional right under the Free Exercise Clause to withdraw their children from compulsory public schooling after eighth grade because continued attendance would substantially interfere with their ability to raise their children in accordance with their religious beliefs and practices.
The defendants argued that Yoder shouldn’t apply, saying the case was sui generis (limited to its unique facts involving the Amish community’s centuries-old, insular religious lifestyle). The lower courts agreed, ruling that Yoder should not be read as a general rule allowing religious opt-outs from discrete parts of public school curricula. But the SCOTUS majority rejected these arguments. They held that Yoder is not confined to its facts but instead “embodies a robust principle of general applicability.”
The principle: whenever a government policy or curriculum “substantially interferes with the religious development” of a child or poses “a very real threat of undermining” the religious beliefs parents wish to instill, the Free Exercise Clause is implicated. Per Yoder, this meant that strict scrutiny applies, regardless of whether the policy is neutral and generally applicable.
This is notable, as applying strict scrutiny to a broader range of cases alleging infringement on parents' constitutional rights could make it significantly easier for parents to object to school curriculum.
Struck Out by Strict Scrutiny
Under strict scrutiny, the government must show that the policy in question advances a compelling governmental interest and is “narrowly tailored” to achieve that interest. Although the LGBTQ+ books policy passed muster on the first prong, the majority found that it failed the latter.
The majority found that the Board’s justifications were undermined by the fact that it continued to allow opt-outs in other contexts, such as for the “Family Life and Human Sexuality” unit (as required by Maryland law) and for various noncurricular activities. The Board also provided parallel programming for other groups of students, showing that the accommodations were administratively feasible in other situations. The Court reasoned that if the Board could structure other curricula to accommodate opt-outs, it could do the same for the storybooks.
Thus, the majority found the policy failed strict scrutiny because the Board could not show that denying opt-outs was the least restrictive means to achieve its interests, especially given the existence of opt-outs elsewhere in the curriculum. The policy was thus unconstitutional under the Free Exercise Clause as interpreted through Yoder.
Additionally, the majority held that the government cannot condition access to public education on parents’ willingness to accept a burden on their religious exercise. The availability of private schools or homeschooling is not a sufficient answer, especially given compulsory education laws.
The majority found that the parents were likely to succeed on the merits and would suffer irreparable harm without immediate relief. It granted the injunction, meaning that the Board is now court-ordered to notify parents in advance when such storybooks are used and allow parents to excuse their children from that instruction while the case proceeds. While the case isn’t settled for good, it is a significant sign that if the makeup of SCOTUS stays the same, it’s likely to reach the same result if and when the case comes back before it on the merits.
Related Resources:
- Sex Education Laws and Public Schools (FindLaw's Learn About the Law)
- Discrimination Against LGBTQ+ Students (FindLaw's Learn About the Law)
- Gender Identity at School: Legal Issues (FindLaw's Learn About the Law)
