A group of parents filed a claim against the decision of the Montgomery County Board of Education in Maryland, United States, to include LGBTQ-inclusive books in the English language arts curriculum. Specifically, they were not given prior notice and the opportunity to opt out of their children’s exposure to such content. The parents argued that the Board’s decision violated their rights under the US Constitution’s free exercise and due process clauses. Therefore, they filed a preliminary injunction, requiring the Board to give them such notice and an opt-out option. A District Court rejected the request.
The parents challenged that decision before a Court of Appeal. They claimed the free exercise of their religion and their due process right to direct their children’s education were infringed. However, the Federal Court of Appeal for the Fourth District also rejected the petition. Since, up to that initial point in the litigation, the parents did not meet the burden required to obtain a preliminary injunction. The Court was insistent that, at the time, the record was not sufficiently integrated to support their request. Therefore, they upheld the District Court’s decision. See below for the context and reasons for the ruling.
Background
Content of the Books | LGBTQ-inclusive books
The disputed works are books approved as part of the English Language Arts Curriculum for Montgomery County public schools in Maryland. The LGBTQ-inclusive books, the Court noted, express the authors’ positions on sexual orientation and gender identity. They portray homosexual, transgender and non-binary characters in a variety of situations. However, the Court noted that there was little information on the record about how these books have been or will be integrated into the range of books offered for the language arts curriculum.
Controversy over their inclusion
As recounted in the ruling, the implementation of LGBTQ-inclusive books in Montgomery County schools for the 2022-2023 school year was highly controversial. It provoked a range of reactions from teachers, administrators and parents alike about its effectiveness and age-appropriateness. That is, while some complaints were based on religious beliefs, there were also allegations that the themes and content of the plays were not age-appropriate. As a result, many parents sought to exempt their children from reading them.
Changes in book implementation policy
In the first year of inclusion of the LGBTQ-inclusive books, parents were given prior notice and were allowed the possibility to opt out of their use. However, for the 2023-2024 academic year, the Board informed that this option would no longer be available. That is, from this year onwards, parents would not be notified and would not have the possibility to choose not to expose their children to books. The Court of Appeal emphasised that the concrete reason for this decision was unknown. However, various reasons were subsequently given. For example, this policy of prior notice and exclusion led to a high number of student absenteeism.
This raised concerns about the possibility of accommodating this number of students without disrupting the student environment and the educational mission. In addition, it placed a heavy burden on the academic staff to keep in mind which students could have access to books. An alternative plan for the students who would not be present would also have to be worked out. The Board also raised the concern that the policy would isolate and stigmatise people whose circumstances are projected onto the books.
Litigation
Claim
This policy change prompted several parents to file a claim in a Federal District Court in the District of Maryland. The parents alleged violations of their rights and their children’s rights to free exercise, free speech, due process, and Maryland state law. It should be noted that the parents did not challenge the adoption of LGBTQ-inclusive books, nor did they seek a ban on their distribution in schools. Their claim focused on allowing them prior notice and the ability to opt their children out of reading the books. Essentially, the parents argued that they have a religious duty to educate their children according to their beliefs on various issues such as gender, marriage, sexuality and related issues.
Therefore, they want to have control over their children’s education on these issues. As they felt that the ideological stances presented in the LGBTQ-inclusive books contradicted their views. Therefore, they demand that their children should not be exposed to these books. Thus, the parents considered that the Board’s decision not to notify them and to take away the opportunity to exclude their children from accessing the content of the books violates their freedom to exercise their religion and their right to due process in directing their children’s education.
Preliminary injunction
In their claim, the parents sought a preliminary injunction to prohibit the forced exposure of the content of LGBTQ-inclusive books to their children, to give them prior notice and to allow them to opt out of their use. It should be noted that a preliminary injunction is a precautionary measure ordered at the beginning of proceedings to prevent the defendant from taking harmful actions or to order him or her to act in a certain way. This is to preserve the state of affairs pending the outcome of the trial. It is the decision on the application for this petition that was the subject of the judgment.
District Court decision and appeal
The District Court refused to grant the preliminary injunction. Since it considered that the parents did not prove that they would succeed at trial (cognizable burden). That is, they did not prove that they would obtain a favourable judgment deciding the case. A requirement for granting this interim relief. Consequently, the parents challenged the decision through an interlocutory appeal. This appeal was heard by the United States Court of Appeals for the Fourth District.
Judgment Considerations
Standard of burden
The Court of Appeal recalled that to grant a preliminary injunction, a high burden of proof must be met. Whether such a relief is appropriate depends on the applicants demonstrating that:
- They are likely to succeed on the merits.
- They are likely to suffer irreparable harm if the injunction is not granted.
- That the balance of equities will turn in their favour
- That it is in the public interest to grant the injunction
In the case at hand, the Court of Appeal specified that the parents had to show that denying them the possibility to opt their children out of being exposed to the content of the books would coerce them or their children to believe or act contrary to their religious beliefs.
Failure to meet the burden | Free Exercise Claim
The Court of Appeal found that the parents failed to demonstrate that they showed a cognizable burden to support their free exercise claim. Given the breadth of their claims and the limited record. The Court found that the parents failed to demonstrate a likelihood that they would succeed at trial (on the merits). In particular, it held that there was no evidence that the Board’s decision compelled the parents or their children to change their religious beliefs or conduct. The Court clarified that under Supreme Court precedent there needs to be pressure – direct or indirect – to abandon religion or act contrary to these beliefs. However, the record did not show that exposure to the books compelled the parents or their children to undoubtedly act contrary to their religious beliefs. Thus, the judges concluded that Yoder, 406 U.S., cited by the parents, did not support their arguments.
Clarification | Possibility of proving the claim at trial.
It is important to note that the Court was emphatic in clarifying that the claimed violations could be proven later with sufficient evidence. For example, parents to provide evidence that the mere exposure of primary school children to books and related speech amounted to coercion. However, the judges made clear that it is not their duty to determine the pedagogical value of the books. They must verify whether the parents demonstrated a likelihood of success in their claim of free exercise. This would have required demonstrating the existence of coercion because of exposure to the books. Nonetheless, it was reiterated that there was no evidence in the record to support such a claim. Therefore, the court could not reach a conclusion at this stage.
The Court explained that it understood the parents’ argument to be that the books could be used to confuse or mislead their children. Notably, that discussions on these topics could indoctrinate them with perspectives contrary to their religious beliefs. Nevertheless, the court reiterated that this was not proven on the record. Thus, a more robust and integrated record could change the outcome, as it has in other free exercise cases.
Inapplicability of standard of burden – Access to public benefits
The parents argued that the existence of the burden was demonstrated by the denial of access to public benefits. However, the Court of Appeal dismissed the argument. Essentially, the Board does not condition access to the school on the religious affiliations or beliefs of the parents or their children. The school is open to all members of the public. Thus, the Board does not penalise parents by requiring them to disobey their religious beliefs to send their children to public school. The parents also argued that the Board’s actions are coercive, as it would force them to spend more to find an alternative public school. However, the Court of Appeal – based on case law – rejected such an argument, as possible additional costs do not support obtaining injunctive relief. Even if the parents are placed in an undesirable situation, this is not an unconstitutionally coercive position.
Conclusion
The Court of Appeal concluded that the parents failed to produce sufficient evidence to demonstrate a cognizable burden to be granted preliminary injunctive relief. In other words, they did not prove a likelihood of success on the merits. There was no evidence in the record to show that the implementation of the books coerces parents or their children to believe or act contrary to their religion. Accordingly, the court held that it could not conclude that the challenged policy, by itself, created a coercive environment. Thus, the Court indicated that the parents failed to demonstrate that the lack of prior notice and an opportunity for their children to be excluded from the material constituted a likely transgression of their free exercise rights. Accordingly, the Court of Appeal affirmed the District Court’s judgment.
Dissenting vote
The likelihood to succeed on the merits was demonstrated.
Not all judges agreed with the decision. Circuit Judge Quattlebaum issued a dissenting opinion. In summary, the Judge found that the parents did demonstrate a likelihood of success on the merits. In his arguments, the Judge held that courts leave curriculum decisions to schools as a general rule. Not decisions that burden the free exercise of religion in a way that is neither neutral nor generally applicable. Such decisions will only be constitutional if they strictly conform to a compelling governmental interest.
Thus, the judge found that the parents could succeed on the merits in claiming that the use of the books burdens their free exercise of religion. As well as in demonstrating that the Board’s decision is neither neutral nor of general application. Also, they may succeed in proving that the decision does not stand up under strict scrutiny. The Judge was therefore of the opinion that it was appropriate to grant the preliminary injunction and to reverse the District Court’s decision.
Read the judgement Mahmoud v. McKnight
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References
Case: Mahmoud v. McKnight, No. 23-1890 (4th Cir. 2024)
