This article was updated Aug. 10 at 12:03 p.m. to include additional details about the substance of the court hearing.
A federal judge peppered attorneys with questions for over three hours during a hearing Wednesday morning in the lawsuit filed against Montgomery County Public Schools over its no-opt-out approach to reading elementary-level LGBTQ+ inclusive materials in school.
If the plaintiffs’ preliminary motion is granted, the school district could be forced to honor opt-out accommodation requests until the lawsuit’s ultimate resolution.
In a packed courtroom on the fourth floor of the U.S. District Courthouse in Greenbelt, Judge Deborah Boardman heard arguments from attorneys on both sides of the case formally known as Mahmoud v. McKnight.
Boardman asked dozens of technical questions about the law and how it applies to the parties’ positions. The 10 a.m. hearing continued for over three hours before the judge called for a recess.
Boardman said she would issue a ruling on the motion before Aug. 28—the first day of school for MCPS.
From the outset, Boardman emphasized the “high bar” plaintiffs’ attorneys must meet in order for her to grant their motion for an injunction, calling it “an extraordinary remedy” awarded only upon “clear evidence” supporting the merits of their case.
On behalf of the plaintiffs, attorney Eric Baxter from the Becket Fund for Religious Liberty argued that the supplemental English Language Arts books at the heart of the lawsuit should be treated the same way as the Family Life and Sexuality unit of the MCPS health curriculum.
Current state law mandates that all public schools allow opt-outs for families who wish to avoid the substance of this unit for any reason. Baxter argued that parents have the right to define the LGBTQ+ storybooks as falling under this curriculum, saying the school board is “playing games” by labeling the books English language materials.
Boardman questioned whether there are any LGBTQ+ inclusive books in existence that Baxter’s clients would “feel comfortable with” schools using. Baxter answered, “There’s clearly something about these books that triggered a reaction.” She asked him specifically whether his clients consider Uncle Bobby’s Wedding an affront to their firmly-held religious beliefs. The storybook follows a young girl who fears her favorite uncle won’t have time for her anymore as his wedding day approaches. Baxter said he hasn’t asked his clients specifically about each of the books.
For the MCPS defendants, Alan Schoenfeld from the law offices of WilmerHale argued that the health curriculum is completely distinguishable from the English language materials. He noted that while the Family Life and Sexuality unit is regularly scheduled and heavily regulated by the state, the LGBTQ+ storybooks are age-appropriate tools used to teach English literacy and are utilized at teachers’ discretion. The notion that any mention of the LGBTQ+ community must be subject to the same scrutiny as a health textbook is “precisely what this curriculum was introduced to fight against,” Schoenfeld said.
Approaching the case from a different angle, Baxter suggested that exposure to LGBTQ+ inclusive storybooks would place a “substantial burden” on families who feel the books’ content would create a “pressure to modify” their students’ beliefs.
“So, help me understand,” Boardman responded. “Children listening to a class discussion creates a constitutional burden?”
Baxter said the pressure created by the books’ content would force some families to choose between exposing their students to the storybooks or exercising their right to religious freedom and withdrawing from the public school system entirely.
Countering the point, Schoenfeld said case law has always held that mere exposure to ideas cannot be considered a substantial pressure or burden. If parents withdraw their students from public school over the books, “they’re not compelled—it’s a choice,” he said. “Evolution offends people, but there’s no right to opt out of science classes,” he added.
Boardman asked him whether he thinks the LGBTQ+ inclusive books in question “go beyond advancing inclusion,” and Schoenfeld said he does not. “Nothing in those books is indoctrinating anyone” any more than Romeo and Juliet, Sleeping Beauty, Shrek or other age-appropriate stories with romantic themes, he asserted.
Schoenfeld also argued that the board’s policy is not discriminatory toward any particular religious belief because it’s applied equally to all opt-out requests. “A religiously justified request for opt out is treated the same as a non-religious request,” he said, asserting that it’s “not discriminatory because it’s unilateral.”
At 8 a.m. before the hearing, a group of approximately 50 people met in a parking lot across the street for a pro-opt-out rally organized by the plaintiffs’ attorneys. County resident Wael Elkoshairi from Family Rights for Religious Freedom—a key leader behind the recent opt-out protests—took the stage to thank people for showing up to support the plaintiffs. The rally was cut short when Greenbelt Police and Department of Homeland Security officers informed attendees the parking lot was private property and needed to be vacated.
After the hearing, advocates on both sides of the opt-out debate told MoCo360 they perceived Boardman to be leaning toward a decision in their favor. Elkoshairi said he thought both sides presented “balanced arguments” and that the judge seemed “on the fence.” He said he perceived several inconsistencies in Schoenfeld’s arguments and feels optimistic about a favorable ruling.
“Overall, it’s hard to get a feel for how strong each case was,” he said. “I thought Baxter did a good job of explaining our position.”
Trans Maryland’s executive director Lee Blinder—a local advocate for the LGBTQ+ community—said they feel “really confident” in both the outcome of the hearing and, more generally, in the positive direction they believe society is headed when it comes to LGBTQ+ inclusivity, calling it an “inevitable trajectory.”
“We know that trans and queer people have existed in communities since the beginning of time,” they said. “I think this ruling is going to be a positive outcome for inclusivity—but regardless, we’ve always been here, and we will always find ways to take care of one another.”