In 2023, Montgomery County Public Schools ended an opt-out policy, prompting the parents, backed by religious freedom advocates, to take the district to court. 

A federal appeals court agreed with the suburban Washington district’s argument that it didn’t coerce the students to change their beliefs about gender and sexuality simply by exposing them to stories with gay or transgender characters. But some conservative justices in Tuesday’s oral arguments agreed with the families, who say the books alone pose a burden on parents’ religious beliefs and the district clearly intends to “disrupt” students’ thinking about issues like same-sex marriage and whether someone can change their pronouns. 

“What is the big deal about allowing them to opt out of this?” Justice Samuel Alito asked Alan Schoenfeld, who represents the school district. As an example of a “clear moral message,” he pointed to Uncle Bobby’s Wedding, a picture book focusing on a girl’s feelings of jealousy when her favorite uncle gets married to another man. “It doesn’t just say ‘Look, Uncle Bobby and Jamie are getting married.’ It expresses the idea [that] this is a good thing.” 

Justice Ketanji Brown Jackson, however, warned that because the case is still at such an early stage — the parents just want to restore the opt-out policy for now — the court shouldn’t be making a decision that would force districts nationwide to adopt such policies for curriculum that could offend parents’ religious beliefs.

“Instead of having democratically elected representatives and experts in the field making the decision about which books should be taught to kids in the classroom, you have federal judges flipping through the picture books and deciding whether these are appropriate for 5 year olds,” she said. “It seems pretty troubling, because ordinarily, public education has been the subject of local control.”

‘Not a sea change’

The case, brings together multiple issues at the forefront of President Donald Trump’s conservative agenda: parental rights, religious freedom and eliminating what Trump calls from the nation’s schools. Sarah Harris, principal deputy solicitor general argued, for the government, saying that other states, including Pennsylvania, Arizona and Hawaii have “very broad” opt-out policies. She rejected the school district’s position that such arrangements pose administrative challenges for schools and teachers.

“It’s something that schools have done for a long time,” she said “It is not a sea change.”

The Montgomery County board, however, abruptly decided to end opt outs in 2023, said Eric Baxter, an attorney with Becket, a law firm that represents the parents and focuses on religious liberty. That’s when the conflict began. 

District leaders, Baxter said, chose books that are “clearly indoctrinating students” to believe differently. Because the district allows opt outs from sex education classes, the families argue the same option should be available when teachers plan to read the books in class.

The district chose the books to be inclusive and teach respect toward those with different beliefs and lifestyles, Schoenfeld said. The opt outs, according to the district, were increasingly disruptive, with at least one school seeing “dozens” of requests. Some parents kept students home for the entire day to avoid the readings. District officials maintain that they’re not discriminating against religion because they ended opt outs for all reasons, not just religious ones. 

Justice Amy Coney Barrett, one of the six conservatives on the court, focused on written materials that advise teachers how to respond in class if, for example, a student says “A girl can only like boys because she’s a girl.”

The guidance instructs teachers to make comments like “When we’re born, people make a guess about our gender and label us boy or girl based on our body parts. Sometimes they’re right sometimes; they’re wrong.” 

Those statements, Barrett said, “seem to be more about influence and … shaping of ideas and less about communicating respect.” 

But Schoenfeld said there’s not enough evidence in the record showing how teachers ultimately used the books in the classroom to determine if coercion actually occurred. 

Justice Kavanaugh, who said he’s a “lifelong resident” of Montgomery County, expounded on the religious diversity of the community and questioned why the district took such a hardline position. 

“You see religious building after religious building. I’m surprised … that this is the hill we’re gonna die on in terms of not respecting religious liberty,” he said. The goal in such cases, he said, has been to “look for the win-win” — to accommodate religious beliefs while still allowing the government to pursue its goals.

“They’re not asking you to change what’s taught in the classroom,” he said about the parents. “They’re only seeking to be able to walk out.” 

‘Where the court is headed’

While the record in the case is limited, it does include a comment from Board Member Lynne Harris, who said parents don’t have a right to “micromanage their child’s public-school experience” and are free to send their children to a private religious school if they disagree with what’s taught. 

Joshua Dunn, executive director of the Institute of American Civics at the University of Tennessee, Knoxville, is looking to the court’s past religious freedom cases as a guide to how the justices might view this debate. Former Justice Stephen Breyer, a liberal, foreshadowed how far the conservative wing of the court might go to accommodate the rights of families to practice their faith, Dunn said.

In a 2017 Missouri case, , Breyer sided with the conservative majority in ruling in favor for a church that was turned down for a state grant. To him, it was just obviously wrong to deny Trinity Lutheran access to a grant program for recycled rubber for a playground,” Dunn said. “It had nothing to do with religion.”

But his views changed in and — two cases focusing on public funds for tax credits or vouchers at faith-based schools. In Carson, Breyer asked whether “public schools must pay equivalent funds to parents who wish to send their children to religious schools.” 

Maryland doesn’t have a private school choice program, and vouchers for parents who object to the books on religious grounds are not on the table in this case, Dunn said. But he wonders whether the conservative justices could apply the same logic that concerned Breyer. 

In other words, would the court reason that because the government funds education for students whose parents don’t object to the books, it should be obligated to fund schooling for those who oppose such materials on religious grounds? 

“All you have to do,” he said “is be able to read and count noses and you can see where the court is headed.” 

For now, advocates on the district’s side want the court to show restraint and deny the parents’ request to reinstate the opt-out policy.

“They’re trying to get a court-mandated order that any parent can opt their children out of class rather than have virtually any type of exposure to books with LGBTQ characters,” said Eileen Hershenov, chief legal officer for PEN America, a free speech organization that filed a brief in the case and advocates against restrictions on books. “It’s a recipe for administrative nightmares for public schools with the likely result that students will have little or no exposure to families or characters other than those that offend no religious sensibilities.”

A group of parents sued the Montgomery County Public Schools in Maryland, arguing that requiring children to sit through storybook readings on topics such as a and a girl giving to another girl offends their religious beliefs.

“We were forced to choose between God and education,” said Billy Moges, a Christian mother of three and a board member for Kids First, an advocacy group that formed to oppose the district’s move. She pulled her children out of the school system when officials ended the opt-out policy and has since started a private Christian school, , that meets in a Silver Spring church. 

“We’re not asking for any special treatment,” she said. ‘We’re asking for our rights to be restored.”

Regardless of who wins, the case will head back to the district court for further action.

The appeal centers on parents’ request to reinstate the opt-out policy until the district court can rule on whether the district violated their rights. But the court’s conservative majority may also use the oral arguments to address the underlying facts, said Joshua Dunn, executive director of the Institute of American Civics at the University of Tennessee, Knoxville.

“The school board didn’t relent, and then compelled students to sit through these books being read,” he said. “I just think that for some of the justices on the court, that’s going to strike them as extraordinarily wrong-headed.” 

District officials say the books, intended for pre-K through third grade, were never intended to push views about sex and gender. The opt outs, they argue, became increasingly disruptive and contributed to absenteeism because some parents let their children skip the whole day if a lesson included one of the books. 

Opt-outs “stigmatized LGBTQ students and students who have LGBTQ families,” said Aditi Fruitwala, a staff attorney with the American Civil Liberties Union, which supports the district. Reinstating the policy, she said, would “undermine the entire purpose of a public education system, which is to create good citizens who can thrive in a society with people from a variety of backgrounds, faiths and cultures.” 

The case, , illustrates the growing tension between inclusion and religious freedom. That’s likely the reason the conservative-learning court agreed to hear the appeal, Fruitwala said. The parents who sued — Muslim, Catholic and Orthodox Christian — also have the : Solicitor General John Sauer will participate in the oral arguments. In a brief, the Department of Justice said the board’s policy forces parents to be in “dereliction of their religious duties” by sending their children to public school. Twenty-six Republican-led states and 66 members of Congress also support the parents. 

Religiously diverse

Over the past few years, confrontations over these issues have escalated in districts across the country. In February, parents in the , district, near Rochester, objected to the district’s use of The Rainbow Parade, a picture book about a young girl and her two mothers attending a Pride parade. 

Nationally, the public leans in favor of schools allowing parents to opt their children out of lessons about sexual orientation and gender identity. Fifty-four percent agreed with that view in a Pew Research poll , but the partisan divide was stark: Support for opt outs was 79% among Republicans, compared with 32% among Democrats.

Despite clashes over such materials from to , both sides of the conflict agree that Montgomery County offers an especially apt setting for the debate. The county is one of the most in the nation, according to the Public Religion Research Institute. 

Will Haun, senior counsel at Becket, a law firm that focuses on religious liberty and represents the parents, said it’s “astonishing,” that such a district would abandon the longstanding practice of accommodating parents’ opt-out requests. 

Fruitwala said the district’s rich religious and diversity is precisely why the books belong in the curriculum. District leaders, she said, have an “opportunity to incorporate books from a wide variety of cultures and perspectives and backgrounds that reflect the families in the school district.” 

The 160,000-student district’s effort to bring more diversity to its reading program began in 2022-23, when the school board voted to add six books featuring LGBTQ characters. Officials said they chose the titles for the same reasons they would add any storybooks to the curriculum — to teach sentence structure, word choice and style.

In a brief to the U.S. Court of Appeals for the Fourth Circuit, the National Education Association and its Maryland and Montgomery County affiliates highlighted comments from teachers that demonstrated students’ eager response to the books. 

A veteran second grade teacher relayed what happened when she read , a picture book about a mother who makes a rainbow-colored wig for her transgender daughter. “Upon hearing the words, ‘I’m a transgender girl,’ one of the children in my class called out, ‘That’s like my sister!’ This child felt seen,” the teacher said, according to the brief.

Ignoring LGBTQ families, district leaders say, puts schools at risk of violating state that prohibit discrimination on the basis of sexual orientation or gender identity. 

The ruled that refusing to allow children to opt out of the readings put no burden on religious parents. That’s when the families appealed to the Supreme Court.

They argue that since the district permits families to opt their children out of sex education, under a state law, that choice should extend to books that represent LGBTQ themes in other subjects. 

“All the school board had to do,” Haun said, “was simply recharacterize sexuality and gender instruction as English language arts and they get out of a long-standing national consensus that allows parents to opt their children out of that kind of instruction.”

Last fall, the district in question — My Rainbow and , a rhyming alphabet book about a puppy that runs off during a Pride parade. But Rev. Rachel Cornwell, a Methodist minister who has two students in Montgomery County schools, said she wouldn’t be surprised if the district was forced to remove all of the storybooks.

She wishes the parents would suggest different books rather than leave the district. 

“I think the vast majority of people in Montgomery County support the inclusion of these books into the curriculum,” she said. “These are not books about sex. They are books about people’s lives and about the diversity of our community.” 

As the mother of a transgender son, she said she and other LGBTQ families want their children to feel like they belong.

“We’re not trying to indoctrinate anybody or say this is right or wrong,” she said. “That’s for you to have a conversation about with your kid at home.”