In a recent ruling receiving national media attention, the federal Fourth Circuit Court of Appeals (covering Maryland, North Carolina, South Carolina, Virginia, and West Virginia) upheld a trial court ruling denying a “preliminary injunction.” Initially, the Montgomery County (Maryland) Board of Education allowed parents to “opt-out” from LGBTQ themed books included as part of the District’s English curriculum. The Board then reversed course on this policy, prompting a lawsuit from parents who wanted to opt their children out of such curriculum. The injunction, if granted, would have stopped the Montgomery County Board of Education from reversing its prior opt-out policy, effectively requiring students to participate in the English curriculum regardless of the theme.
The court found that the Plaintiff parent groups had failed to establish a “probability of success on the merits” for their claims that the Board’s action violated the Parents’ freedom of religion under the First Amendment. Noting the paucity of the factual record before the court, they sent the case back to the trial court for development of a full factual record of how the additions to the curriculum were actually being implemented by the District. The ruling, Mahmoud et al. v. McKnight, et al., was decided by a 2-1 majority.
This is not Montgomery County Board of Education’s first trip to the Fourth Circuit on LGBTQ issues. In a major ruling in August of 2023, the Court rejected a parental challenge to the Board of Education’s “Guidelines for Gender Identity,” which permitted schools to develop “gender support plans” for students without parental knowledge or consent and allowed school personnel to withhold information about the plans from parents if the school personnel believed the parents would be “nonsupportive.”
In that case, parents filed suit alleging that the Board’s policy violated their constitutional right to raise their children under the Fourteenth Amendment. The Fourth Circuit, in John and Jane Parents 1 v. Montgomery County Board of Education, upheld the trial court’s dismissal of the complaint but on different grounds. Because the Plaintiff parents did not have students who were actually impacted by the Board’s policy, the court majority (again in a 2-1 ruling) determined that the Parents lacked “standing” to assert their complaint in federal court. Rather, as the majority stated, their remedy lies in “the ballot box.”
Illinois does not currently have litigation similar to the Montgomery County cases, and the Fourth Circuit’s rulings are not binding on Illinois school districts.
Illinois law does provide, however, for limited curriculum “opt-outs.” Members of the IASB PRESS policy service will find them summarized in an exhibit to sample policy 6:60. These opt-outs include K-8 instruction for recognizing and avoiding sexual abuse, family life instruction, AIDS instruction, National Sex Education Standards, donations and transplants of organ/tissue and blood/organ tissue transplantation, and instruction in CPR and how to use an AED. In addition, PRESS sample policy 6:260 addresses curriculum complaints and parent/guardian requests for a student to be exempt from using a particular instructional material or program.
Curricular issues continue to impact school districts throughout our state. Please contact Michelle Todd or any member of our Student/Special Education practice group with your inquiries.
