USCA4 Appeal: 23-1890 Doc: 120 Filed: 05/15/2024 Pg: 1 of 67
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`PUBLISHED
`
`UNITED STATES COURT OF APPEALS
`FOR THE FOURTH CIRCUIT
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`
`No. 23-1890
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`v.
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`
`TAMER MAHMOUD; ENAS BARAKAT; JEFF ROMAN; SVITLANA
`ROMAN; CHRIS PERSAK; MELISSA PERSAK, in their individual capacities
`and ex rel. their minor children; KIDS FIRST, an unincorporated association,
`
` Plaintiffs – Appellants,
`
`
`
`MONIFA B. MCKNIGHT; SHEBRA EVANS; LYNNE HARRIS; GRACE
`RIVERA-OVEN; KARLA SILVESTRE; REBECCA SMONDROWSKI;
`BRENDA WOLFF; JULIE YANG; MONTGOMERY COUNTY BOARD OF
`EDUCATION,
`
` Defendants – Appellees.
`
`--------------------------------
`
`DOUGLAS LAYCOCK, Professor; RICHARD W. GARNETT, Professor;
`HELEN M. ALVARE, Professor; THOMAS C. BERG, Professor; MICHAEL W.
`MCCONNELL, Professor; NICHOLAS BROWN; ZEINA EL DEBS; TIMOTHY
`JANSS; DAGMAR JANSS; STEPHANIE PATE; JEWISH COALITION FOR
`RELIGIOUS LIBERTY; COALITION OF VIRTUE; ISLAM AND RELIGIOUS
`FREEDOM ACTION TEAM; COALITION FOR JEWISH VALUES;
`COMMONWEALTH OF VIRGINIA AND 17 OTHER STATES; ETHICS AND
`PUBLIC POLICY CENTER; ERIC DEGROFF, Professor; COMMONWEALTH
`OF VIRGINIA AND 22 OTHER STATES; ADVANCING AMERICAN
`FREEDOM,
`INC.; PAUL TELLER; ALASKA FAMILY COUNCIL;
`AMERICAN FAMILY ASSOCIATION ACTION; AMERICAN VALUES;
`CATHOLIC VOTE; CENTER FOR POLITICAL RENEWAL; CHRISTIAN
`LAW ASSOCIATION; CHRISTIANS ENGAGED; EAGLE FORUM;
`FRONTLINE POLICY COUNCIL; IDAHO FAMILY POLICY CENTER;
`INTERNATIONAL CONFERENCE OF EVANGELICAL CHAPLAIN
`ENDORSERS; MISSOURI CENTER-RIGHT COALITION; MINNESOTA
`FAMILY COUNCIL; MOMS FOR LIBERTY; NATIONAL ASSOCIATION OF
`
`

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`USCA4 Appeal: 23-1890 Doc: 120 Filed: 05/15/2024 Pg: 2 of 67
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`PARENTS d/b/a PARENTSUSA; NEW JERSEY FAMILY FOUNDATION;
`NEW MEXICO FAMILY ACTION MOVEMENT; SETTING THINGS RIGHT;
`THE FAMILY FOUNDATION; THE JUSTICE FOUNDATION,
`
` Amici Supporting Appellants.
`
`STATE
`EDUCATION ASSOCIATION; MARYLAND
`NATIONAL
`EDUCATION ASSOCIATION; MONTGOMERY COUNTY EDUCATION
`ASSOCIATION; PROFESSOR LAWRENCE G. SAGER; PROFESSOR
`NELSON TEBBE; PROFESSOR JUSTIN DRIVER; AMERICAN CIVIL
`LIBERTIES UNION; AMERICAN CIVIL LIBERTIES UNION OF
`MARYLAND; LAMBDA LEGAL DEFENSE AND EDUCATION FUND,
`INC.; GLBTQ LEGAL ADVOCATES & DEFENDERS; NATIONAL CENTER
`FOR LESBIAN RIGHTS; HUMAN RIGHTS; CAMPAIGN FOUNDATION;
`THE TREVOR PROJECT, INC; GLSEN, INC.; PFLAG, INC.; PFLAG
`REGIONAL CHAPTERS; EQUALITY NORTH CAROLINA; SOUTH
`CAROLINA EQUALITY, INC.; MOCO PRIDE CENTER; FCPS PRIDE;
`RAINBOW YOUTH ALLIANCE; SUPPORTING AND MENTORING YOUTH
`ADVOCATES AND
`LEADERS; WHITMAN-WALKER HEALTH;
`WHITMAN-WALKER
`INSTITUTE; MARYLAND; MASSACHUSETTS,
`CALIFORNIA, CONNECTICUT; DELAWARE; THE DISTRICT OF
`COLUMBIA; HAWAII; ILLINOIS; MAINE; MICHIGAN; MINNESOTA;
`NEVADA; NEW YORK; NEW JERSEY; OREGON; PENNSYLVANIA;
`RHODE ISLAND; VERMONT; WASHINGTON,
`
` Amici Supporting Appellees.
`
`
`Appeal from the United States District Court for the District of Maryland, at Greenbelt.
`Deborah Lynn Boardman, District Judge. (8:23-cv-01380-DLB)
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`
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`Argued: December 5, 2023
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`Decided: May 15, 2024
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`
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`Before AGEE, QUATTLEBAUM and BENJAMIN, Circuit Judges.
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`Affirmed by published opinion. Judge Agee wrote the opinion in which Judge Benjamin
`joined. Judge Quattlebaum wrote a dissenting opinion.
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`ARGUED: Eric S. Baxter, THE BECKET FUND FOR RELIGIOUS LIBERTY,
`Washington, D.C., for Appellants. Alan E. Schoenfeld, WILMERHALE LLP, New York,
`New York, for Appellees. ON BRIEF: William J. Haun, Michael J. O’Brien, Colten L.
`Stanberry, THE BECKET FUND FOR RELIGIOUS LIBERTY, Washington, D.C., for
`Appellants. Bruce M. Berman, Joseph M. Meyer, Jeremy W. Brinster, Washington, D.C.,
`Emily Barnet, WILMERHALE LLP, New York, New York, for Appellees. Christopher
`Mills, SPERO LAW LLC, Charleston, South Carolina, for Amici Professors Douglas
`Laycock, Richard W. Garnett, Helen M. Alvaré, Thomas C. Berg, Michael W. McConnell,
`and Eric DeGroff. Paul R. Rivera, Rockville, Maryland; Steven W. Fitschen, James A.
`Davids, NATIONAL LEGAL FOUNDATION, Chesapeake, Virginia; Frederick W.
`Claybrook, Jr., CLAYBROOK LLC, Washington, D.C., for Amici for Parents Nicholas
`Brown, Zeina El Debs, Timothy Janss, Dagmar Janss, and Stephanie Pate. Howard Slugh,
`Washington, D.C., for Amici Jewish Coalition for Religious Liberty, Coalition of Virtue,
`Islam and Religious Freedom Action Team, and Coalition for Jewish Values. Jason S.
`Miyares, Attorney General, Andrew N. Ferguson, Solicitor General, Kevin M. Gallagher,
`Deputy Solicitor General, Annie Chiang, Assistant Solicitor General, OFFICE OF THE
`ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Amicus Commonwealth
`of Virginia. Steve Marshall, Attorney General, OFFICE OF THE ATTORNEY GENERAL
`OF ALABAMA, Montgomery, Alabama, for Amicus State of Alabama. Tim Griffin,
`Attorney General, OFFICE OF THE ATTORNEY GENERAL OF ARKANSAS, Little
`Rock, Arkansas, for Amicus State of Arkansas. Brenna Bird, Attorney General, OFFICE
`OF THE ATTORNEY GENERAL OF IOWA, Des Moines, Iowa, for Amicus State of Iowa.
`Lynn Fitch, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF
`MISSISSIPPI, Jackson, Mississippi, for Amicus State of Mississippi. Austin Knudsen,
`Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MONTANA, Helena,
`Montana, for Amicus State of Montana. Drew Wrigley, Attorney General, OFFICE OF
`THE ATTORNEY GENERAL OF NORTH DAKOTA, Bismarck, North Dakota, for
`Amicus State of North Dakota. Gentner F. Drummond, Attorney General, OFFICE OF
`THE ATTORNEY GENERAL OF OKLAHOMA, Oklahoma City, Oklahoma, for Amicus
`State of Oklahoma. Angela Colmenero, Provisional Attorney General, OFFICE OF THE
`ATTORNEY GENERAL OF TEXAS, Austin, Texas, for Amicus State of Texas. Patrick
`Morrisey, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF WEST
`VIRGINIA, Charleston, West Virginia, for Amicus State of West Virginia. Treg Taylor,
`Attorney General, OFFICE OF THE ATTORNEY GENERAL OF ALASKA, Anchorage,
`Alaska, for Amicus State of Alaska. Christopher M. Carr, Attorney General, OFFICE OF
`THE ATTORNEY GENERAL OF GEORGIA, Atlanta, Georgia, for Amicus State of
`Georgia. Daniel Cameron, Attorney General, OFFICE OF THE ATTORNEY GENERAL
`OF KENTUCKY, Frankfort, Kentucky, for Amicus Commonwealth of Kentucky. Andrew
`Bailey, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MISSOURI,
`Jefferson City, Missouri, for Amicus State of Missouri. Michael T. Hilgers, Attorney
`General, OFFICE OF THE ATTORNEY GENERAL OF NEBRASKA, Lincoln, Nebraska,
`for Amicus State of Nebraska. Dave Yost, Attorney General, OFFICE OF THE
`ATTORNEY GENERAL OF OHIO, Columbus, Ohio, for Amicus State of Ohio. Alan
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`Wilson, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF SOUTH
`CAROLINA, Columbia, South Carolina, for Amicus State of South Carolina. Sean D.
`Reyes, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF UTAH, Salt Lake
`City, Utah, for Amicus State of Utah. Eric N. Kniffin, Mary Rice Hasson, ETHICS &
`PUBLIC POLICY CENTER, Washington, D.C., for Amicus Ethics and Public Policy
`Center. J. Marc Wheat, ADVANCING AMERICAN FREEDOM, INC., Washington, D.C.,
`for Amici Advancing American Freedom, Inc.; Paul Teller; Alaska Family Council;
`American Family Association Action; American Values; Catholic Vote; Center for Political
`Renewal; Christian Law Association; Christians Engaged; Eagle Forum; Frontline Policy
`Council; Idaho Family Policy Center; International Conference of Evangelical Chaplain
`Endorsers; Tim Jones, Missouri Center-Right Coalition; Minnesota Family Council; Moms
`for Liberty; National Association of Parents; New Jersey Family Foundation; New Mexico
`Family Action Movement; Setting Things Right; The Family Foundation; and The Justice
`Foundation. Kristy K. Anderson, MARYLAND STATE EDUCATION ASSOCIATION,
`Annapolis, Maryland; Alice O’Brien, Jason Walta, Keira McNett, NATIONAL
`EDUCATION ASSOCIATION, Washington, D.C., for Amici National Education
`Association, Maryland State Education Association, and Montgomery County Education
`Association. Rachel M. Schiff, Phillip H.C. Wilkinson, San Francisco, California, Rachel
`G. Miller-Ziegler, Helen E. White, MUNGER, TOLLES & OLSON LLP, Washington,
`D.C., for Amici Professors Lawrence G. Sager and Nelson Tebbe. Amanda Flug Davidoff,
`Daniel J. Richardson, Cason J.B. Reily, SULLIVAN & CROMWELL LLP, Washington,
`D.C., for Amicus Professor Justin Driver. David Rocah, Deborah Jeon, AMERICAN
`CIVIL LIBERTIES UNION FOUNDATION OF MARYLAND, Baltimore, Maryland;
`Aditi Fruitwala, Heather Weaver, Daniel Mach, AMERICAN CIVIL LIBERTIES UNION
`FOUNDATION, Washington, D.C., for Amici American Civil Liberties Union and
`American Civil Liberties Union of Maryland. Karen L. Loewy, Washington, D.C., Paul D.
`Castillo, LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC., Dallas, Texas;
`Jeffrey M. Gutkin, Reece Trevor, San Francisco, California, Urvashi Malhotra, COOLEY
`LLP, Palo Alto, California; Mary L. Bonauto, Gary D. Buseck, GLBTQ LEGAL
`ADVOCATES & DEFENDERS, Boston, Massachusetts; Shannon Minter, Christopher F.
`Stoll, NATIONAL CENTER FOR LESBIAN RIGHTS, San Francisco, California; for
`Amici Lambda Legal Defense and Education Fund, Inc.; GLBTQ Legal Advocates &
`Defenders; National Center for Lesbian Rights; Human Rights Campaign Foundation; The
`Trevor Project, Inc.; GLSEN, Inc.; PFLAG, Inc. and PFLAG Regional Chapters; Equality
`North Carolina; South Carolina Equality, Inc.; MOCO Pride Center; FCPS Pride; Rainbow
`Youth Alliance; Smyal; Whitman-Walker Health; and Whitman-Walker Institute. Andrea
`Joy Campbell, Attorney General, Adam M. Cambier, Assistant Attorney General, OFFICE
`OF THE ATTORNEY GENERAL OF MASSACHUSETTS, Boston, Massachusetts, for
`Amicus Commonwealth of Massachusetts. Anthony G. Brown, Attorney General, Joshua
`M. Segal, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF
`MARYLAND, Baltimore, Maryland, for Amicus State of Maryland. Robert Bonta,
`Attorney General, OFFICE OF THE ATTORNEY GENERAL OF CALIFORNIA,
`Sacramento, California, for Amicus State of California. Kathleen Jennings, Attorney
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`General, DELAWARE DEPARTMENT OF JUSTICE, Wilmington, Delaware, for Amicus
`State of Delaware. William Tong, Attorney General, OFFICE OF THE ATTORNEY
`GENERAL OF CONNECTICUT, Hartford, Connecticut, for Amicus State of Connecticut.
`Brian L. Schwalb, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF THE
`DISTRICT OF COLUMBIA, Washington, D.C., for Amicus District of Columbia. Anne
`E. Lopez, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF HAWAI’I,
`Honolulu, Hawai’i, for Amicus State of Hawai’i. Aaron M. Frey, Attorney General,
`OFFICE OF THE ATTORNEY GENERAL OF MAINE, Augusta, Maine, for Amicus State
`of Maine. Keith Ellison, Attorney General, OFFICE OF THE ATTORNEY GENERAL
`OF MINNESOTA, St. Paul, Minnesota, for Amicus State of Minnesota. Matthew J.
`Platkin, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF NEW JERSEY,
`Trenton, New Jersey, for Amicus State of New Jersey. Ellen F. Rosenblum, Attorney
`General, OFFICE OF THE ATTORNEY GENERAL OF OREGON, Salem, Oregon, for
`Amicus State of Oregon. Peter Neronha, Attorney General, OFFICE OF THE ATTORNEY
`GENERAL OF RHODE ISLAND, Providence, Rhode Island, for Amicus State of Rhode
`Island. Robert W. Ferguson, Attorney General, OFFICE OF THE ATTORNEY GENERAL
`OF WASHINGTON, Olympia, Washington, for Amicus State of Washington. Kwame
`Raoul, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF ILLINOIS,
`Chicago, Illinois, for Amicus State of Illinois. Dana Nessel, Attorney General, OFFICE
`OF THE ATTORNEY GENERAL OF MICHIGAN, Lansing, Michigan, for Amicus State
`of Michigan. Aaron D. Ford, Attorney General, OFFICE OF THE ATTORNEY
`GENERAL OF NEVADA, Carson City, Nevada, for Amicus State of Nevada. Letitia
`James, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF NEW YORK,
`New York, New York, for Amicus State of New York. Michelle A. Henry, Attorney
`General, OFFICE OF THE ATTORNEY GENERAL OF PENNSYLVANIA, Harrisburg,
`Pennsylvania, for Amicus Commonwealth of Pennsylvania. Charity R. Clark, Attorney
`General, OFFICE OF THE ATTORNEY GENERAL OF VERMONT, Montpelier,
`Vermont, for Amicus State of Vermont.
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`AGEE, Circuit Judge:
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`Parents whose children attend Montgomery County Public Schools in Maryland
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`contend that the Montgomery County Board of Education’s (“the Board’s”) refusal to
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`provide notice and an opportunity to opt out from their children’s exposure to certain books
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`and related discussions violates federal and state law. At the outset of the litigation, the
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`Parents moved for a preliminary injunction to require the Board to provide such notice and
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`an opt-out option. After the district court denied their motion, the Parents filed this
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`interlocutory appeal. We take no view on whether the Parents will be able to present
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`evidence sufficient to support any of their various theories once they have the opportunity
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`to develop a record as to the circumstances surrounding the Board’s decision and how the
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`challenged texts are actually being used in schools. At this early stage, however, given the
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`Parents’ broad claims, the very high burden required to obtain a preliminary injunction,
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`and the scant record before us, we are constrained to affirm the district court’s order
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`denying a preliminary injunction.
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`I.
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`A. The Storybooks & Board Policy
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`In October 2022, the Board announced that, through its regular curriculum adoption
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`process, it had approved a group of “LGBTQ-Inclusive Books as part of the English
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`Language Arts Curriculum” for use in Montgomery County Public Schools. J.A. 540.
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`These texts, which we will refer to as “the Storybooks,” are ostensibly “used to assist
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`students with mastering reading concepts like answering questions about characters,
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`retelling key events about characters in a story, and drawing inferences about story
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`characters based on their actions.” J.A. 541. While their individual contents vary, the
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`Storybooks as a whole express their authors’ views on sexual orientation and gender
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`identity by portraying homosexual, transgender, and non-binary characters in various
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`situations. For example, the alphabet primer Pride Puppy!, which is the sole text expressly
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`approved for use in pre-Kindergarten and Head Start classrooms, depicts a family whose
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`puppy gets lost amidst a LGBTQ-pride parade, with each page focused on a letter of the
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`alphabet. The three- and four-year-old audience is invited to look for items such as “[drag]
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`king,” “leather,” “lip ring,” “[drag] queen,” and “underwear.” J.A. 98 (brackets in original);
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`see J.A. 82–99 (reproducing Robin Stevenson, Pride Puppy! (2021)).1
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`The record provides little explanation of how the Storybooks have been, or will be,
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`integrated into the larger array of books offered as part of the Language Arts curriculum.
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`But when opposing the motion for a preliminary injunction, the Board submitted a
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`declaration from the Associate Superintendent of Curriculum and Instructional Programs
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`for Montgomery County Public Schools that addressed the school system’s purpose in
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`adopting and its intended use of the Storybooks. Her declaration states that to “prepare[]
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`principals and teachers for the introduction of” the Storybooks into the curriculum, the
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`1 In another book, Born Ready: The True Story of a Boy Named Penelope, approved
`for use in Kindergarten through Grade 5 and targeted for use in Grade 5, the main character
`is a biological girl who becomes upset when others say, “you look like your sister,” J.A.
`244, because “[i]nside I’m a boy. When I close my eyes and dream, I’m a boy,” J.A. 248.
`Penelope’s family is supportive, and “make[s] a plan to tell everyone” that Penelope is a
`boy even if it “doesn’t make sense” to them because “[n]ot everything needs to make sense.
`This is about love.” J.A. 255, 259; see J.A. 242–76 (reproducing Jodie Patterson, Born
`Ready: The True Story of a Boy Named Penelope (2021)).
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`school system provided guidance and training opportunities, including statements that the
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`Storybooks were not “planned” to be part of “explicit instruction on gender identity and
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`sexual orientation in elementary school, and that no student or adult is asked to change how
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`they feel about these issues.” J.A. 540–41. Teachers were instead expected to “incorporate
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`the [Storybooks] into the curriculum in the same way that other books are used, namely, to
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`put them on a shelf for students to find on their own; to recommend a book to a student
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`who would enjoy it; to offer the books as an option for literature circles, book clubs, or
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`paired reading groups; or to use them as a read aloud” for all students in the class. J.A.
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`540–41. Although the adoption of the Storybooks came with the expectation that teachers
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`would incorporate them into the classroom environment in some way, the Associate
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`Superintendent represented that the decision about which books to use and how they’d be
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`used in an individual classroom is left to each teacher’s discretion. J.A. 541 (“Teachers
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`have a choice regarding which [of the Storybooks] to use and when to use them throughout
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`each unit. . . . Teachers cannot, however, elect not to use the [Storybooks] at all.”).
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`As part of the Storybooks’ rollout, Montgomery County teachers and administrators
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`were provided access to additional materials “to support” them in responding to inquiries
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`about the Storybooks’ contents. J.A. 600. These materials, which are not part of the student-
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`facing texts, include a number of potential questions that the Storybooks may generate from
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`students and their caregivers, along with sample answers and conversation points to justify
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`the Storybooks. For example, if a student says “Being _____ (gay, lesbian, queer, etc) is
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`wrong and not allowed in my religion,” teachers “can respond,” “I understand that is what
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`you believe, but not everyone believes that. We don’t have to understand or support a
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`person’s identity to treat them with respect and kindness.” J.A. 595. The guidance also
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`counsels that if a student says that “a girl . . . can only like boys because she’s a girl,” the
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`teacher can “[d]isrupt the either/or thinking by saying something like: actually, people of
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`any gender can like whoever they like. . . . How do you think it would make __(character’s
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`name)__ to hear you say that? Do you think it’s fair for people to decide for us who we can
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`and can’t like?” J.A. 595 (emphasis added). If a student asks what it means to be
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`transgender, the teacher could explain, “When we’re born, people make a guess about our
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`gender and label us ‘boy’ or ‘girl’ based on our body parts. Sometimes they’re right and
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`sometimes they’re wrong. . . . Our body parts do not decide our gender. Our gender comes
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`from our inside[.]” J.A. 596.
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`In terms of responding to queries from parents or caregivers, the additional materials
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`include such recommendations as disagreeing with concerns that elementary-age children
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`are “too young to be learning about gender and sexual[] identity.” J.A. 600. It prompts that
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`teachers could respond to such concerns by observing that “[c]hildren are already learning
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`about it” because “[m]essages about gender are everywhere,” and that “[b]eginning these
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`conversations in elementary school will help young people develop empathy for a diverse
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`group of people and learn about identities that might relate to their families or even
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`themselves.” J.A. 600. In response to a caregiver’s concern that values in the books “go
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`against the values we are instilling . . . at home,” the guidance suggests reiterating that
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`“[t]he purpose of learning about gender and sexual[] identity diversity is to demonstrate
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`that children are unique and that there is no single way to be a boy, girl, or any other gender.
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`If a child does not agree with or understand another student’s . . . identity . . . , they do not
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`have to change how they feel about it.” J.A. 601.
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`Almost as soon as the Storybooks were first adopted and integrated into
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`Montgomery County schools during the 2022–2023 academic year, numerous teachers,
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`administrators, and parents began voicing concerns about their efficacy and age
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`appropriateness. Some complaints were based on religious grounds, but many were not.
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`For instance, several elementary school principals signed onto a document that identified
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`numerous instances in the Storybooks of age-inappropriate content such as words being
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`used without definitions; inherent problems with depicting young children “falling in love”
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`with another individual regardless of orientation; and the overall difficulty of some of the
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`concepts presented. J.A. 574. Many parents, including the eventual plaintiffs in this case,
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`expressed concerns about having their children exposed to content at odds with their
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`religious faith or that they deemed to be inappropriate for their children’s age and
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`development. In short, the Storybooks’ rollout was contentious and many caregivers
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`sought—for religious and secular reasons—to have their children exempted from the
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`Storybooks.
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`During the first year of the Storybooks’ inclusion in the Language Arts curriculum,
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`parents were provided notice and the opportunity to opt out of their use through agreements
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`with individual principals and teachers. This accommodation appeared to be in line with
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`the County’s 2022-2023 Guidelines for Respecting Religious Diversity, which encouraged
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`schools “to make reasonable and feasible adjustments to the instructional program to
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`accommodate requests . . . to be excused from specific classroom discussions or activities
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`that [parents or students] believe would impose a substantial burden on their religious
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`beliefs,” subject to alternative assignments. J.A. 67. As alleged in the amended complaint,
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`on March 22, 2023, the Board publicly reiterated that when a teacher chose to use one of
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`the Storybooks in their classrooms, “a notification goes out to parents about the book,”
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`and, if a caregiver chooses to opt their child out, the teacher would “find a substitute text
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`for that student that supports” the same language arts standards and objectives. J.A. 31.
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`The following day, without explanation, the Board announced in a complete about-
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`face that a notice and opt-out option would no longer be permitted. Although the revised
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`policy became effective immediately, old requests for accommodations were grandfathered
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`in through the end of the 2022–2023 academic year, making the current 2023–2024
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`academic year the first year for which no students or their parents are provided notice or
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`the opportunity to opt out from the Storybooks.2
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`2 Although not directly cited in the amended complaint or filings to date, we note
`that according to the Board’s website, its 2023-2024 Guidelines have since been amended
`considerably, permitting students to be “excused from noncurricular activities . . . that
`involve materials or practices in conflict with a family’s religious, and/or other, practices,”
`but prohibiting all “requests for exemptions from required curricular instruction or the use
`of curricular instructional materials based on religious, and/or other, objections” and
`eliminating the language encouraging accommodations when the instruction substantially
`burdens a parent or child’s free-exercise rights. 2023-2024 Guidelines for Respecting
`Religious Diversity, 3–4, https://perma.cc/SB9Z-SJSC.
`Because we conclude that the Parents have not yet come forward with evidence that
`would establish a burden for purposes of obtaining a preliminary injunction on their claim
`as it’s been formulated thus far, we do not delve into the constitutionality of the Guidelines
`in their current form. Any impact this revised written language has on the Parents’ claims
`or arguments would need to be fleshed out in the first instance in the district court if raised
`by the Parents.
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`What motivated the policy change is largely unknown, but the Associate
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`Superintendent’s declaration asserts several after-the-fact explanations. First, it claims that
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`the original notice-and-opt-out policy had led to “high student absenteeism,” J.A. 543, and
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`it cited concerns
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`from principals and
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`teachers
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`regarding
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`the
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`feasibility of
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`“accommodat[ing] the growing number of opt out requests without causing significant
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`disruptions to the classroom environment and undermining [the school system’s]
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`educational mission,” J.A. 542. It also represented that allowing notice and an opt-out
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`option placed too great a burden on school staff charged with (1) remembering which
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`students could be present during lessons involving the Storybooks or otherwise be
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`permitted access to those books, and (2) developing alternative plans for those students
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`who could not be present across a range of language-arts activities. Lastly, the declaration
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`recounts the Board’s concern about stigmatizing and isolating individuals whose
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`circumstances were reflected in the Storybooks.
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`B. The Litigation
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`Two months after the Board changed its policy and prohibited notice and an opt-out
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`option, the Parents filed a complaint in the United States District Court for the District of
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`Maryland.3 They subsequently amended the complaint to add a plaintiff.4 The amended
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`complaint alleges six claims, which can be grouped into four bases for asserting the Board’s
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`decision violates the Parents’ and their children’s rights: (1) free exercise; (2) free speech;
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`(3) due process; and (4) Maryland state law.
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`The Parents do not challenge the Board’s adoption of the Storybooks or seek to ban
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`their use in Montgomery County Public Schools. Instead, the Parents contend that the cited
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`legal bases require that they have notice and the opportunity to opt out “of classroom
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`instruction on such sensitive religious and ideological issues.” J.A. 13. Their overarching
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`assertion is broad, contending that it violates the Free Exercise Clause not to allow
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`individualized opt-outs from all potential uses of the Storybooks within the Language Arts
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`curriculum as well as all discussions that may arise related to their use. Consistent with
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`those arguments, the amended complaint seeks a declaratory judgment that the revised
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`3 The named individual plaintiffs are Tamer Mahmoud and Enas Barakat, who are
`Muslim; Jeff and Svitlana Roman, who are Roman Catholic and Ukrainian Orthodox,
`respectively; and Chris and Melissa Persak, who are Catholic. Each of these families have
`one or more elementary-school-age children attending Montgomery County Public
`Schools. They’ve sued in their individual capacities and ex relatione their children.
`The named defendants are the Board and its individual members, sued in their
`official capacities.
`4 The added plaintiff is Kids First, “an unincorporated association of parents and
`teachers” advocating “for the return of parental notice and opt-out rights” in Montgomery
`County Public Schools. J.A. 13–14. Kids First did not join in the Parents’ motion for a
`preliminary injunction. Although the district court expressed concern about the Parents’
`arguments in support of the motion that relied on one member of Kids First’s declaration,
`it nonetheless considered those arguments in denying a preliminary injunction.
`Because Kids First did not join the motion for a preliminary injunction and given
`the strict standards by which such a motion is considered, we will not consider these
`arguments in this appeal. We express no view on arguments Kids First may raise in the
`district court and that court is free to consider and assess the merits or barriers to reaching
`the merits of any of those claims as the litigation proceeds.
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`policy violates the cited federal and state constitutional provisions; requests injunctive
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`relief prohibiting forced exposure to the Storybooks and requiring notice and an
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`opportunity for opt-outs; and asks for nominal and actual damages.
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`While the specifics vary, the Parents all cite their religious views as spurring their
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`desire to opt their children out of the Storybooks. Broadly speaking, they believe they have
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`a religious duty to train their children in accord with their faiths on what it means to be
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`male and female; the institution of marriage; human sexuality; and related themes. Their
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`respective religious faiths direct and inform their views about these issues, and they want
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`to maintain control over what, how, and when these matters are introduced to their children.
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`Because the Parents believe that the “ideological view[s] of family life and sexuality”
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`portrayed in the Storybooks conflict with their views on these and related topics, they
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`object to their children being exposed to them. J.A. 18. Accordingly, they assert that the
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`Board’s refusal to permit notice and an opportunity to opt out from use or discussions
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`relating to the Storybooks violates the free exercise of their religion and their due process
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`right to direct their children’s education.5
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`Shortly after filing their complaint, the Parents moved for a preliminary injunction
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`based only on the alleged violations of the Free Exercise and Due Process Clauses of the
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`5 The Parents’ challenge stretches beyond their children reading (or being read) the
`Storybooks to any classroom conversations about the themes and issues presented in the
`Storybooks. Opening Br. 34 (“[T]he Parents object to their children’s presence in situations
`that prematurely expose them to ideas about sexuality and gender in conflict with their
`religious beliefs.”).
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`federal Constitution.6 They argued that they had shown a likelihood of succeeding on the
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`merits of their free exercise and due process claims because the Board’s refusal to provide
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`notice and an opt-out opportunity was subject to strict scrutiny and could not withstand that
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`review.
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`The Parents relied on four lines of Supreme Court cases in advocating why strict
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`scrutiny should apply to their free exercise claims: (1) Wisconsin v. Yoder, 406 U.S. 205
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`(1972), demands strict scrutiny of any policy that interferes with a parent’s right to direct
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`the religious upbringing of his or her children; (2) Fulton v. City of Philadelphia, 141 S.
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`Ct. 1868 (2021), provides for strict scrutiny of any policy that permits discretionary,
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`individualized exemptions; (3) Tandon v. Newsom, 141 S. Ct. 1294 (2021) (per curiam),
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`states that any policy treating religious exemptions worse than secular exemptions triggers
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`strict scrutiny; and (4) Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.
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`520 (1993), and Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S.
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`Ct. 1719 (2018), call for strict scrutiny when official action occurs under circumstances
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`demonstrating governmental hostility toward religion.
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`The Parents argued that strict scrutiny also applied to their due process claim
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`because it was being asserted in conjunction with a free exercise claim, and thus presented
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`a so-called “hybrid rights” claim.7 But the crux of their claim is that they have a
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`6 The Parents’ motion did not rely on the First Amendment free speech or Maryland
`state law claims. As such, arguments related to them are not before us and it