People For the American Way Foundation

Biden Judge Casts Deciding Vote to Reject Preliminary Injunction Claim that School System Must Allow Students to Opt Out of Use of LGBTQ- Friendly Books in Curriculum

Biden Judge Casts Deciding Vote to Reject Preliminary Injunction Claim that School System Must Allow Students to Opt Out of Use of LGBTQ- Friendly Books in Curriculum

Judge DeAndrea Benjamin cast the deciding vote to affirm a lower court ruling that refused to grant a preliminary injunction requiring the Montgomery County Maryland school system to allow students to opt out of using “LGBTQ-friendly” books included in the curriculum. Benjamin joined an opinion by George W Bush nominee Steven Agee, to which Trump nominee Marvin Quattlebaum dissented. The May 2024 decision was in Mahmoud v McKnight.


What is the background of this case?

 In 2022, the Montgomery County school board announced that, through the regular curriculum process, a number of “LGBTQ inclusive” books had been added to the English and language arts curriculum. Although initially the board allowed parents and students to opt out of being “exposed” to these books, the board ended the opt-out policy, due to burdens on staff and other problems. Led by the right-wing group the Becket Fund, a group of parents filed suit in federal court.

Specifically, Becket sought a preliminary injunction requiring an opt-out policy, including prior notice whenever a teacher planned to use one of the books, claiming that  “forced exposure” to the books imposes a “substantial burden” on the religious exercise rights of objecting parents and students and thus violates the First Amendment’s Free Exercise Clause. After briefing and a hearing, the district court declined to issue an injunction. Becket appealed to the Fourth Circuit.


How did Judge Benjamin and the Fourth Circuit Rule and Why is it Important?

 Judge Benajmin cast the deciding vote in a 2-1 opinion that affirmed the denial of a preliminary injunction and sent the case back to the lower court. Judge Agee wrote that in order to show a “cognizable burden,” Becket and  parents must show that the lack of an opt-out policy “coerces them or their children to believe or act contrary to their religious views.” He noted, however, that the record below does not provide any such evidence, such as how often the books are used and “what any child has been taught”, or evidence that the lack of an opt-out policy ”compels” anyone to change their religious beliefs.

In accord with prior precedent, the majority specifically rejected the claims of Becket and the dissent that mere “exposure” to the books was enough to make out a Free Exercise claim. They could show neither direct nor indirect coercion at this stage and thus could not sustain the burden needed to justify a preliminary injunction, not to mention the fact that the school board would have an opportunity to justify any burden shown.

The opinion made possible by Judge Benjamin’s deciding vote set and reinforced important precedent about what parents who object to parts of a public school curriculum must prove to require “opt out” privileges under the Free Exercise clause, privileges that may harm school systems and other parents and students. This is particularly true in the Fourth Circuit, which includes Maryland, Virginia, West Virgnia, and North and South Carolina.  As Maryland ACLU legal director Deborah Jeon noted, in light of “intensifying calls to ban books and limit access to information about LGBTQ+ people,” the court’s “ruling in support of inclusion in education matters.”  The decision also serves as an important reminder of the significance of promptly confirming fair-minded nominees to our federal courts