Listen to the article 4 min

This audio is auto-generated. Please let us know if you have feedback.

Dive Brief:

• States are divided in a lawsuit challenging a Maryland district's decision to revoke parents' ability to opt out of LGBTQ+ inclusive curriculum. The lawsuit has made its way to the Fourth Circuit Court of Appeals after Muslim and Christian parents challenged a district court's decision in August siding with the Montgomery County Board of Education.

• In a brief filed Monday, nearly 20 state Democratic attorneys general sided with the Maryland district, saying its policy of not allowing parents to opt out does not violate the Constitution or state laws. The AGs, who include Maryland’s Anthony Brown, also say schools "possess broad discretion to shape school policies to promote tolerance and respect for others," and that diversity comes with benefits for all students, including those belonging to the LGBTQ+ community. 

• Last month, 23 Republican attorneys general filed a brief in the case against the Montgomery County Board of Education. They said the board’s decision to revoke parental opt-outs violated parents' rights to raise their children under the First Amendment, and described the books as "sex education" that students should be allowed to withdraw from. 

Dive Insight:

While many other lawsuits have cropped up nationwide challenging both LGTBQ+ inclusive policies and those that limit LGBTQ+ issues in schools, Maryland's case is one of the first to raise questions over parents' rights to opt their children out. 

In the district court's decision favoring Montgomery County, District Judge Deborah Boardman said "the parents’ inability to opt their children out of reading and discussion of the storybooks does not coerce them into violating their religious beliefs."

Schools traditionally have allowed parents and students individually to opt out of reading certain books rather than limiting students' access more broadly.

While Montgomery County originally offered the former option to parents when it expanded its language arts curriculum, it reversed the practice after “individual schools could not accommodate the growing number of opt out requests without causing significant disruptions to the classroom environment” and the “unworkable burdens” that high opt-out volumes put on educators, according to court documents. 

Allowing parents to opt out has been a longstanding practice in public schools for other issues like sex education and high-stakes testing. Policies allowing parents the choice to opt out of curricula vary by district and state, but the majority of states already have them in place for sex education.

However, opting out has traditionally been reserved for finite materials, like specific books or limited lessons. But new state measures are allowing parents to opt students out of broad concepts, said Nadine Johnson, managing director of PEN America, a free speech advocacy organization that also tracks curriculum censorship policies. 

"It is important to distinguish between opting students out of a narrowly defined thing — for example, two days of a particular topic in health class — and open-ended opt-out rights," said Johnson.

At least 26 bills would allow parents to opt their children out of any material they consider inappropriate or against their moral or religious beliefs, according to the organization's count. That relatively broad definition of opting out "makes it impossible for teachers to predict when a parent might choose to opt out of a lesson or assignment," per an August report.

The change in approach to opt-out policies is also making school districts rethink how to maintain them, and determine their scope.

"That may be informing the situation in Montgomery County, where the district revoked the opt-out option when it found the volume of opt-outs became too much to handle," said Johnson.