Litigation Update: Mahmoud v. McKnight

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Chayila Kleist:  Hello, and welcome to this Federalist Society webinar call. Today, December 11, 2023, we're delighted to be hosting a litigation update on Mahmoud v. McKnight, a case concerning religious liberty, free speech, education policy, and parental rights. My name is Chayila Kleist, and I'm an assistant director of practice groups here at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today's program, as The Federalist Society takes no petition on particular legal or public policy issues. Now, in the interest of time, getting to our discussion, I will keep the introductions of our guests today brief and perhaps in so doing, do them a disservice. But if you'd like to know more about either of our guests, you can access their impressive full bios at fedsoc.org.

 

Today, we are fortunate to have with us Eric Baxter, who serves as vice president and senior counsel at The Becket Fund for Religious Liberty, where he has been since 2011. At Becket, he represents religious organizations and individuals in a wide array of religious liberty disputes at both the trial and appellate level. Before joining the Becket Fund, Mr. Baxter was a partner at Arent Fox LLP in Washington, D. C. where he maintained a commercial complex litigation practice representing clients primarily in employment, intellectual property, and biotechnology disputes. He's also served for many years as outside counsel to a D. C. church and its affiliated school. Additionally, and perhaps most relevant to today's program, he serves as counsel for the plaintiffs in this case.

 

Also joining us today as our moderator for the discussion is Emilie Kao, who serves as senior counsel and vice president of advocacy strategy at the Alliance Defending Freedom, where she's a member of the U. S. legal team. Before joining ADF, Ms. Kao served as director of the DeVos Center for Religion and Civil Society at the Heritage Foundation. Ms. Kao also served as senior legal counsel at an international human rights law firm, East Asia team leader in the U. S. Department of State's Office of International Human Rights and was an adjunct professor at the Antonin Scalia Law School at George Mason University. And I will leave it there. As a last note throughout the panel, and then I will get off your screens, if you have any questions, please submit them via the question-and-answer feature found at the bottom of your Zoom screen so that our speakers will have access to them when we get to that portion of today's webinar. With that, thank you all for joining us today. Ms. Kao, the floor is yours.

 

Emilie Kao:  Thank you so much, Chayila, and welcome to this webinar. I'm delighted to be joined by Eric Baxter, who's at Becket, where I actually started working on religious liberty. And this is a fascinating case that we're going to discuss today, Mahmoud v. McKnight. I won't go too much into the facts, so I'll let Eric do that. But I just want to say that this is such an important case because it brings together the parental rights concerns and the religious liberty concerns. And in many ways, it is representative of what parents across the country are facing. But it also has some distinctives because of the particular plaintiffs in this case, which Eric will talk about. And I think you'll all find the discussion of what is being taught in the schools very interesting. So with that, Eric, I'd like to start off by going over the facts of the case and then get into the procedural posture and then talk about the law. So could you start off with the facts?

 

Eric Baxter:  Yeah. Thanks, Emilie. It's great to be with you this afternoon. This is a pretty simple case. We're asking -- it's about the right of parents to withdraw their children from particular aspects of school that would offend their religious beliefs. This is something that happens all the time across a range of religious issues. In fact, Montgomery County, Maryland, where the entity we're suing, the school board there has policies in place that, say, "Anytime there's curriculum that offends a particular student's or their parents' religious, beliefs, that the parents and students have the right to opt out of that particular curriculum." And the school board will provide some alternative curriculum for that hour or whatever it is that you might want to withdraw from. So kids ask to be excused from Halloween activities, sometimes from music classes, sometimes from literature courses. And so this is something that's been going on for a long time in Montgomery County, Maryland. Last fall, the school board adopted a series of children's storybooks, primarily for grade pre-K through fifth grade. We've called these the pride storybooks because they're all stories about gender transitioning or same sex romances.

 

So one of the books for pre-K, that's kids who are three and four years old, is called "Pride Puppy." It's a story of a family, two women, who take their children to a pride parade. The puppy gets lost in the parade, and the children kind of run through the parade and alphabetically learn about all the things that you might see in the parade. And then at the end of the book, there's a word search list where students are encouraged to look for things like drag queen, zipper, underwear, the name of a well-known trans activist. So familiarizing children with concepts of what you might see in a pride parade. And throughout, pictures that promote and support and talk about pride in ways that is contrary to many individuals' religious beliefs. Another book is "A Boy Called Penelope," about a biological girl who persuades her family that she's really a boy. One of her brothers is kind of upset about this, and the mom says to him, "Stop trying to make sense of this. This is all about love." Teachers are encouraged to tell students that doctors guessed at your sex when you were born, and you should explore for yourself what your pronouns and gender are.

 

And other books introduced things, concepts around what it means to be cisgender, non-binary, ideas about personal pronouns. And so parents in Montgomery County, hundreds of parents found that the content was inappropriate for kids their children's ages and started opting their kids out of the storybook hour when those books would be read. One interesting fact is even the principals in Montgomery County, there's a union for the county -- county's elementary school principals, and they wrote a letter to the school board saying, "Hey, we think these books are totally inappropriate for kids of these ages." It said they're dismissive of religious beliefs. They shame children who disagree. One of the comments was -- one of the books is about a girl in the fourth grade who has a same sex crush on another girl. And the principal said, "We shouldn't be talking to elementary kids about romance, playground romances, regardless of whether it's a heterosexual or homosexual relationship."

 

And so there was just a wide sense throughout the county that this was inappropriate. A lot of parents started withdrawing their students. The school board said, "That's fine. We have a policy. You can withdraw students." And so they allowed this all until March of this year. On March 22, the school board issued a public statement saying, "Yes, we have an opt out policy. Parents can opt their children out of these books, and we will honor those requests." The next day, the school board said, "Wait a second. We're actually not going to tell you any longer when these books are read, and we will not honor opt outs. We're not even going to tell you if we've read them in the past. We're drawing a total -- we brought this lawsuit to reinstate that opt out right."

 

I'll just note, Emilie, while you're coming back on that, it's interesting, also, under Maryland law, Maryland law requires opt outs for students whenever there's instruction on family life and human sexuality. That's actually a feature that's found in almost all 50 states. All 50 states either don't teach that curriculum or they require parental opt out rights or even some require parental opt ins. The parents have to give affirmative approval for their children to participate in that kind of instruction. And so this policy, this opt out ban for these storybooks is also a violation of Maryland law and the national consensus that we have that children should not be exposed to these types of issues on sexuality, gender transitioning without the permission of their parents.

 

Emilie Kao:  Eric, can you tell us a little bit more about your clients in this case?

 

Eric Baxter:  Yeah. So as I mentioned, there were a lot of parents throughout Montgomery County who were protesting. There are a number of -- Montgomery County has a fairly large Muslim population, a fairly large Ethiopian Christian -- gatherings at the school board, giving testimony at the school board meetings. And so some of those had a thousand parents, which, if you think about it, for a school board meeting, that's pretty remarkable to have that many parents attending a school board meeting all about these storybooks. And dozens of parents and their children were testifying about both the religious violation and just the general concern about some kids feeling like they're bullied to support things that are contrary to their religious beliefs. That became -- if you followed the news in Montgomery County on this case, this extended over a lot of the summer and this high attendance by parents, organizing, talking to the school board, talking to county executives, really trying to find a solution. The response was pretty shocking. Members of the school board accused parents of just looking for another reason to hate.

 

One Muslim student who testified about his religious beliefs -- a school board member said, "You're just parroting your parent's dogma." That same school board member went on to compare the parents to white supremacists and xenophobes. This was quite shocking to largely Muslim and Ethiopian members of our community, Ethiopian Americans. And then even county executives who weren't in the decision, some of them jumped on as well and started making similar types of accusations. So this has been quite disheartening to community members in Montgomery County who often have supported our current leadership, aligned with them on many issues. And now when they're asking for support for their own religious beliefs, they've been essentially told to take a hike. Not just to take a hike, but that they're haters as well. And so that was really one of the things that pushed parents over the edge, saying that we need to bring a lawsuit. Now we are representing a Muslim family, a Ukrainian orthodox family, a catholic family, and an organization called Kids First that comprises around 300 families of pretty much every faith.

 

Emilie Kao:  So parents of many different faiths are represented in this case. And to be clear, the Montgomery Board of Education, they extinguished the opt out just for the pride books, correct? Not for all of the curriculum, right?

 

Eric Baxter:  That's correct. The school board's religious diversity guidelines still provide broad accommodations, broad opt outs, from any time a parent or child thinks that their rights would be -- their religious freedom rights would be burdened. The school board hasn't even formally amended the policy. They've just said, "We're not going to respect the policy for these pride storybooks, and we're not even going to notify." It's particularly shocking that they've refused even to notify parents. Initially, they had said something like, "Well, even if we didn't do opt outs, you could always just keep your kid home from school that day and you would have an unexcused absence."

 

And interestingly, since the lawsuit was filed, in fact, just earlier last month, I guess there were a lot of students who wanted to protest what's going on in Israel and Gaza. And the school board said, "Well, we won't excuse you, but even though it's against our policies, you can go out and protest. You can miss school." But they've denied that right for parents now who want to take their kids out for these pride storybooks. So it's really quite hypocritical. And it's just these books. Anything else, you can get notice and opt out. Here, you can't opt out or even get notice.

 

Emilie Kao:  Right. So how could parents opt out if they don't have notice that -- advanced notice that it's going to be read or taught to their children?

 

Eric Baxter:  Yeah. And this is difficult for all parents because also children, three, four, fifth through fifth grade, many of them won't even know, for example, that they may feel uncomfortable. They might not know that they need to talk to their parents about it. So parents aren't even sure if their kids, or it's maybe happening. Their kids aren't telling them. They have concerns. They really just want to protect a period of innocence for their children. So they also hate raising these issues at a time when their kids may not have thought about them at all. And so it's like, how far do you drill your child to kind of find out what they're learning in school? How much do you trust that the school is not delving into things that they shouldn't be delving into?

 

For some parents, this is particularly challenging if their children have disabilities or other challenges that may make them particularly susceptible to this kind of instruction. One of our clients has a daughter who has Down Syndrome and ADD, and just because of the way she thinks, it's very difficult once she's heard something that's new and interesting to get that out of her mind. And so, for example, even though she's, I think she's ten, they had to work really hard to teach her about, like, you have to go to this bathroom and not the other bathroom that aligns with her sex. And so they're very concerned that once a teacher starts saying opposite things to her, it would be very difficult for them to undo that. The school board's response has been something like, "Well, you can always teach your kids at home. We're not stopping you from teaching your kids." But that's -- realistically, that doesn't work. I mean, kids, once they're exposed to ideas, you can't really unring that bell when you're trying to preserve a period of innocence until your kids are mature enough to really understand what they're being taught.

 

Emilie Kao:  Well, thanks for that explanation. Now, can you tell us what the procedural posture of the case is at this point?

 

Eric Baxter:  Yeah. So we filed a complaint in the district court of Maryland. We moved for a preliminary injunction. The district court judge denied relief, saying basically that parents have no right, once they put their children in public school, they have no right to control or complain about or dismiss their children from any curriculum that the school chooses. So it's kind of a binary route. Once you put your kids in public school, you're stuck with whatever the school does. If you want to get out of it, you have to homeschool your children or put them in private -- pay for private education. That was the judge's ruling.

 

We appealed to the Fourth Circuit Court of Appeals. We asked for an injunction pending appeal, and the Court denied that and said, "Well, there's a higher burden for that." But the Court did agree to expedite the briefing, expedite the hearing. So we just had the hearing on the appeal from the denial of a preliminary injunction on December 5, so almost one week ago, and we're waiting now for the panel of three in the Fourth Circuit to rule on that. We anticipate -- we're hoping to hear from them on that by mid-February or so.

 

Emilie Kao:  Okay. Well, now let's talk about the law. Tell us about the claims that you've made on behalf of the parents.

 

Eric Baxter:  Yeah. This is a really interesting area of the law and in some ways cutting edge. The Supreme Court hasn't spoken on this issue for a long time. Our claims are primarily free exercise claims asking to protect the right of parents to control the religious upbringing of their children. We've also brought a substantive due process claim that would more broadly protect all parents in that right. The seminal case is the Wisconsin v. Yoder case from 1973 that involved the Amish whose children were in public school. Wisconsin had a law that said, "No, you have to keep your kids," [inaudible 16:15] Amish wanted and imposed criminal penalties and even imprisonment if you didn't keep your children in school. So the Amish were -- there actually were Amish who were fined and imprisoned. They brought a lawsuit asking, under the Free Exercise Clause, to be able to protect those educational decisions for their own children, and the Supreme Court upheld their right.

 

The Supreme Court talked about that we have a long tradition in western culture that's deeply entrenched in our American tradition that parents have the final say and have the right to control the religious upbringing of their children. The school board talked about the common school system -- that that came up long after this right had been established. We've traced portions of the right back, prefounding in the early American system as well. And the Court said, "The fact that we now have a system of common schools and there's a government interest in providing a uniform education doesn't override that parental right." And the Court talked a little about even about what would override that right. And they said, "Basically, as long as parents aren't causing physical or emotional harm to their children or aren't preventing their children from becoming productive citizens, then we'll protect the right of parents to control the education of their children."

 

So if you think about, that's a pretty -- like, we don't remove other parental rights. We don't remove children from their parents. We don't limit parents’ ability to teach their children or how they train them or even how they discipline them unless there's actual physical or emotional harm or children are somehow being impaired from becoming productive adults. So it's pretty high standard before the state can come in and intervene in parental rights. And that's one of the core cases we're relying on. Now, since Yoder was decided, unfortunately, courts have almost uniformly rejected it or not applied it. That's partly because the cases that have been brought are more like curriculum challenges where parents have tried to get books removed from the school as opposed to just removing their children from the curriculum.

 

And so in those cases, courts have been hesitant to get involved in making decisions about what curricula schools will adopt. Perhaps understandably so. But based on those cases, courts have just said, "Well, Yoder was a special circumstance. The Amish lifestyle is so distinct from how most religious Americans. And so we're not really going to apply Yoder in these cases." There's really only one case. It was a pure opt out case, more of a pure opt out case. And it just built on those other curriculum challenges cases to also sideline Yoder and diminish the parental rights. So, unfortunately, since Yoder, there's a whole series of cases that have followed basically diminishing parental rights in this context.

 

A couple of circuits, the Third Circuit has at least acknowledged that strict scrutiny should apply in this context. The Eighth Circuit has recognized that forcing children to sit through curriculum that would violate their religious beliefs is a violation of the Free Exercise Clause. But it's in a case that isn't -- the analysis isn't deeply developed. It's helpful, but there's not a lot of analysis in the case. So there is a little bit of a split. But most of the cases have rejected and sidelined Yoder. And we think that, again, those cases are clearly distinguishable, and they're also just wrong. Some of those cases, for example, just focus on there has to be direct coercion. That's something that the Supreme Court has repeatedly rejected.

 

And, in fact, since Yoder, on related issues, the Court has indicated that strict scrutiny is pretty easily triggered in these contexts, that whenever there is, for example, a government benefit, and if someone feels pressure to abandon or curtail a religious belief in order to access that benefit, then that triggers strict scrutiny or heightened review by the courts. And that's a principle that goes back to Sherbert v. Verner, one of the early Supreme Court cases in the 60's, continued through the Fulton v. City of Philadelphia case, which many viewers might be familiar with, where the Court said that even the right to contract, if you feel like you have pressure to curtail your religious practice as a condition of getting a government contract, then that's sufficient to trigger strict scrutiny.

 

The government in that case argued that you don't have a right to get a government contract, so the government has more leeway to set standards, even if it might burden someone's religious. And the Court said, "No, if someone's religion is even pressured, then that's sufficient." So we think those cases, many of which, like Fulton, have come after the other circuit court curriculum challenges. And then there's the whole series of cases that came after Smith, kind of building out this idea of neutrality and general applicability. Cases like Tandon v. Newsom, where the Court said that if you allow secular exemptions that compromise an interest, you have to also allow religious exemptions. Here we have a situation where students can be sitting in class, and in the fifth grade, for example, they have a sex ed curriculum. They can be taught the same kind of stuff that's being taught in the pride storybooks, and they can opt out under Maryland law.

 

And the school board has said, "Yes, we'll still honor those state required opt outs." But if that same instruction is introduced the next hour during story time, then that student can't opt out. And so that's an example of where you can get a secular exemption in one context. You can't get the religious exemption in the other context, even though it's really the same instruction in pursuit of the same government interest, inclusivity and so forth that violates Tandon. Again, the Fulton v. City of Philadelphia case, the Supreme Court held that a law is not neutral or generally applicable if the government even has the option to grant exemptions, even if they haven't granted them. If they have the option to grant exemptions and they're denying them to religious objectors, then that triggers strict scrutiny. And here we have, the policy specifically allows all kinds of exemptions. The school boards exercise discretion in where it's granted them and not, and that should trigger strict scrutiny.

 

One of the things that our panel seemed particularly interested in is also the Masterpiece Cake Shop situation, where government officials have indicated hostility toward religious exercise and said that in that case, when there's outright hostility, you don't even have to go to strict scrutiny. Policies can be set aside just at that stage based on the hostility. And we've definitely had that, as I mentioned earlier, religious hostility. So besides Yoder, even without Yoder, we think there are a whole series of cases that would require application of strict scrutiny in this context. And once we get to strict scrutiny, the school board just can't show that it has a compelling interest in forcing children to sit through this instruction. And so we think the PI should be granted.

 

Emilie Kao:  I want to go back to something that you -- an example that you gave where the fifth grader could be allowed an opt out from a book that is similar to what a kindergartner is being taught in the next hour. Can you just explain in more detail how, under this policy, the fifth grader would be allowed to opt out but not the kindergartner?

 

Eric Baxter:  Yeah. It's a great question. In 2019, the Maryland School Board, so the state level school board adopted what it called an equity regulation. And that regulation says that all schools have to do more to educate students on inclusivity and equity on a bunch of different grounds, but here most relevant on grounds of sexual orientation and gender identity. So in response to that requirement at the Maryland state level, the school board did two things. It revised its sex ed curriculum to put more inclusivity, SOGI, sexual orientation and gender identity inclusivity into the sex ed curriculum so that when you're taking your sex ed courses, you're getting, in Montgomery County instruction about sexual orientation, gender transitioning, personal pronouns, how you might want to identify what it means to be cisgender, non-binary. All those kinds of things are being taught in the health class.

 

In addition, Montgomery County said, "Well, let's support this new equity guideline or regulation it is. Let's adopt these pride storybooks as well. So you have it in a couple of places. Now, there may be more areas as well where the school board has looked to do this, but primarily we've seen it in the sex ed class and during what they call ELA, or English and language arts curriculum that they've introduced these books.

 

So under cases like Tandon v. Newsom, when you're considering neutrality and general applicability, you look at what the government interest [inaudible 26:06] school board in any way undermining that interest with where it grants exemptions. And in the health class, you can opt out entirely or you can opt out of any portion of it and so on that -- lots of students are missing that instruction in that area of the curriculum. But when you go on to the storybook side, then they're saying, we're not going to allow the opt outs there. And so that's one example of where the government's conduct, why are you allowing it when people have secular or religious in the healthcare context, health class, but not in the storybook context. And that's enough to require courts to take a closer look or apply strict scrutiny. So that's how that works vis a vis the health class.

 

Emilie Kao:  Well, I want to get to the parental rights claim because we haven't started talking about that yet, but I think there's still a little bit more ground to cover on free exercise. First of all, what did the Montgomery County school board say that its interest was in this policy?

 

Eric Baxter:  So, yeah. They've named a few interests. One is they've said, the one I've just mentioned, like, "Well, we want to avoid stigma." So some children might feel stigmatized if they see other children walk out of class when the storybooks are being read. That's a poor reason for lots of reasons. One is, kids leave classroom, kids who have individual education plans, kids who are going to the doctor. Kids leave classrooms all the time for different reasons. And so the fact that a teacher might say, like, "I'm going to let so and so go to the library." And then they've gone to the library and the teacher says, "Now, we're going to read this book." There's no real reason for kids to feel stigmatized.

 

Another problem is that stigma runs both directions. Kids who feel like they're being forced to say things that they disagree with or being told -- some of the teachers’ instructions say things like, "There's no right way to think about this. And you might believe this, but not everyone else believes that or your beliefs are hurtful," is one of the comments, or "Harry Styles wears dresses. Why do you think that's bad?"  So they're putting pressure on children to kind of go along with the story.

 

And then also the Supreme Court has just repeatedly said, including most recently in the Students for Fair Admissions v. Harvard case, that interests like, avoiding embarrassment or creating inclusion -- those don't really rise to a compelling government interests because there's no way to measure them. How do you ever know when someone feels [inaudible 28:47] institution doesn't allow us to force even if others might feel -- so the other interests they've said are that it's too difficult to administer the opt outs. That they've said there's high absenteeism if we allow opt outs. There's no evidence of that. Students aren't absent when they step out of a classroom. They go to the library. And students step out for all kinds of things, including alternative education plans, things like that.  And it's just -- it's never -- the Supreme Court again has repeatedly said, "Just because something's hard doesn't mean we don't do it. That's what the constitution requires." If the constitution requires it, we do it, even if it's hard.

 

And here there's just no evidence that it's that hard. The most the school board has been able to say is that there are dozens of kids in one school who opted out. But they've never said, like, they were all in one class. If they're scattered across 30 classes and there's 24 students or so, and these are classes that are being taught at different hours by different teachers, there's just really no evidence that it has been that burdensome. So those are the interests the government's asserted. Their main argument has been, "Look, once you -- again," what the district court said. Once you go to public school, then you can't control what happens in the public school." And we're fine with that, except that we believe that parents should have the right to take their kids out of portions, that they would violate their religious beliefs.

 

Emilie Kao:  Well, I think a really important part of this case and several other parental rights cases around the country is the discussion about indoctrination and what constitutes education versus indoctrination. And I saw that the order from the district court got into that a little bit. Can you address that?

 

Eric Baxter:  Yeah. There's a couple of the cases, again, these were kind of the more curriculum challenge cases as opposed to opt out cases. But some courts have queried whether the curriculum amounts to indoctrination. There's one case out of the First Circuit that involved a sex ed assembly where students were all -- the entire high school was brought into an assembly, and it was a very lewd discussion. Students were asked to do very inappropriate things. The instructor was making all kinds of inappropriate and lewd comments, crass jokes and so forth. And the courts in some of those types of cases have said, "Well, a one-off thing [inaudible 31:26].

 

So no court has really said you have to prove indoctrination. But they've kind of analyzed whether something amounts to indoctrination. And when it doesn't use that as one reason to not grant relief. You can see that that's a really impossible standard. Like, what does indoctrination mean? If you're a three-year-old or a four-year-old and you're being taught for the first time that you don't have -- your sex -- doctors guessed at your sex when you were born, and you should reconsider for yourself what sex you are. That could have a lasting impact on a child in the way they identify who they are and what it means to be a boy or a girl and what it means to be part of a family. But indoctrination is one of those standards, like fairness, that no judge can really decide when something amounts to indoctrination. The Yoder standard and the government benefits cases instead, say, "Does someone feel pressured to curtail their religious exercise in order to partake of a government benefit that should be available to them?"

 

And here we have parents who are saying, "Wait, I now have to choose between exposing my children to material that is in direct violation of our faith, or give up public school. And if I don't keep them in public school, I either have to pay fines, criminal fines, or I have to pay for expensive private education or home school," which for most of our parents is just impossible. They're usually two working parents trying to make ends meet. They can't afford private school, and they don't have someone at home to do homeschooling, which is obviously an enormous burden. So we just think that the indoctrination theory is the wrong -- it's a little bit of a red herring, because really, we should be looking at the burden on religion.

 

Emilie Kao:  Yeah. So talk a little bit more about the specific religious beliefs of these parents and how it is burdening their freedom to exercise their religious beliefs.

 

Eric Baxter:  Yeah. So, I mean, I think, for example, the Mahmouds, this was, for me, interesting. I didn't realize that the Quran was this specific, but they've showed us, and we've cited passages of the Quran, teachings of other Islamic religious leaders, that it's inappropriate to talk about intimate matters, sexuality, gender, gender, transitioning in a public place. Those are things that should be discussed with people with whom you have familial relationships or other intimate relationships where you can speak about those things in a religiously appropriate manner. And so for them, just to have their child in a setting where they're being forced to discuss these types of topics is directly a violation of their religious beliefs. Our catholic clients have cited statements of the pope, statements from the church, clarifying that sexual education is something that primarily belongs to parents. And parents should have the final say of how and when they teach those things to their children.

 

They also believe in protecting a period of innocence for their children, that their children can grow up in their early, formative years without having to think about these heavy topics before they're ready to really understand what it means to be part of a family, to procreate, to be a man or a woman. And so they want their children just to be able to enjoy youth, their childhood, and that period of innocence. And all of our families have just said that, look, intentionally exposing our children to these, really, ideologies, transgender ideologies, is a direct violation of our religious beliefs. Just like parents, you know, have always made religious or even secular decisions about what books they let their children read, what movies they let their children go to, what spaces they'll take their children into. That's a common aspect of parenting across all cultures and times, I suspect, that parents have made decisions about when you expose your children to more difficult and complex or sensitive issues. And that's really all we're asking here, is that parents continue to have that right, to just choose to pull their children out before they're ready and mature enough or religiously mature enough to balance these issues in an appropriate way.

 

Emilie Kao:  Have some children been exposed to this type of material without their parents being aware of it?

 

Eric Baxter:  So our named clients were successfully got opt outs last year, and those opt outs were honored. We're not sure if their kids have been exposed. We're not aware they have been yet. But we do know that the school board has made clear that these books have to be read. The school board's own testimony was that all teachers have to read at least one of the books every year and that children have to be in there. One of our parents went in and said, "Will you at least let me know what quarter you're going to read it in?" They said, "No." And so they just have no idea when this is going to pop out. That family removed their child from school. So we do know. We've heard -- other parents have told us. Some members of Kids First, the organization we represent, that, yeah, their kids have had these read to them, and they've been disturbed by them. Some kids come home crying because they want to be like this family in the storybooks, and their family is not that way. Or the teacher told me that I need to think this way.

 

One teacher expressed that he'd had, and this is a teacher who's gay, and he said he was uncomfortable teaching some of these books because in another class where the kids were getting this instruction, some of the boys came to him and said, maybe we think we're gay because we only like to play with boys at recess. And it's like, well, when you're in the fourth grade, of course, a lot of boys just want to go play basketball on the playground or hang out with other guys. That's the normal phase of development. It doesn't mean anything about your sexuality or your gender identity. And so it's just confusing to kids at that age who don't really -- they don't really have an understanding of what it means to be a sexual being or to have gender. They don't understand all of the ramifications of those issues. And so to be pushing ideologies that conflict with many parents’ religious beliefs or their traditional understanding of those topics, that is confusing to children. And so that's one of the reasons why so many parents are so confused -- I mean, so concerned.

 

Emilie Kao:  Thank you. So in addition to the free exercise claims, you did bring the parental rights claims under the substantive due process. Are there also some parents who object or who want the opt out who are secular, who are not religious, who want the opt out?

 

Eric Baxter:  Yes. We're representing religious families, and that's what we do, is we represent the religious rights of individuals. But there are others who may not be religious, but they have secular reasons for opposing this teaching. The substantive due process claim would protect them. Under the Substantive Due Process Clause, the church has recognized parental rights as a fundamental right, but courts tend to look at the specific right you're looking for or that you're asking for, not just a broad parental right. And many courts have said that, for example, in the school context, the right to control the specific curriculum or have a say about what your kids are being taught may not always rise to a fundamental right. And so you may just get rational basis scrutiny instead of heightened scrutiny.

 

The Fourth Circuit has said that whenever you couple a parental right with a religious right, then that should trigger strict scrutiny. So we think that should protect all parents in Montgomery County in the Fourth Circuit. But the courts so far have really leaned mostly on the religious claims. The district court obviously rejected the substantive due process claim, but we think, again, that's wrong. It can't be right that parents just have no right once you put your kids in public school. I mean, could the schools give detailed sex education to kindergartners? Could they show pornography to kindergartners? I mean, there has to be some right. And what we're asking for is a very narrow right that you have the right just to remove your child from the classroom when there's something that would violate your religious beliefs or your ability to control the upbringing of your children consistent with your values.

 

Emilie Kao:  Yes. And there are several Supreme Court cases that you cite in your briefs where the Supreme Court has stated that parental rights are a fundamental right -- Meyer and Peirce and Yoder and Toxel -- so you certainly have many Supreme Court precedents that have been clear about the fundamental nature of the parental right, perhaps not clear enough on the standard of review to be applied, which is why you have the district court applying, as you said, the rational basis standard.

 

Eric Baxter:  But if you do look at cases like Yoder -- again, I like to go back to Yoder, because to me, that's a very clear case where the courts -- in that case, there was just exposure at issue. Parents were just concerned that their parents were being exposed to views about what it means to have a career and a profession. They had no problem letting their kids be exposed to those views all the way up through the 8th grade. But in 9th and 10th grade, they felt that that was a formative period on when children think about how children think about their careers. And so they wanted their children out. But there was no concerted effort in Yoder on the part of the school to persuade children to reject the Amish values. It was really just an exposure case that the Court said that parents had the right to opt their children out entirely from the whole school system, not just a class.

 

So we think that that must be true also, that where you have children in a formative year, these are much younger children, much more complex topics, much more controversial on these issues of sexuality and gender identity, when kids really don't have the mental capacity or the maturity to fully process or understand those issues, and the school has engaged in a concerted effort. They said, "We want to disrupt heteronormativity." They want to disrupt students either/or thinking on these issues. They want students to think that there's no right way to think about these issues. Those are all statements that the school board itself has made in response to parents' concerns. They've trained teachers to make those responses to parents. And so this is much more severe of a situation than Yoder. And it just can't be right that parents don't even have the ability to be notified and remove their child when that type of instruction is going to take place.

 

Emilie Kao:  And so what are the remedies that you're seeking for your clients?

 

Eric Baxter:  Yeah. The main remedy is the one that I've mentioned, that we want the optout rights to be restored, that parents, in this context, like with every other curriculum, have the right to be notified and opt their children out when these books are being read. We've also asked for damages, that if our parents are compelled to put their children in private school, the school board be on the hook for those additional costs, since they're causing it by violating the free exercise rights of our parents.

 

Emilie Kao:  Well, I think we've covered a lot of ground on the free exercise claims and the parental rights claims. Something I found interesting in your filings was also some of the science that you got into about some of the things that the school is teaching on gender identity. Can you talk a little bit about that?

 

Eric Baxter:  Yeah. I think there's a huge national and international debate going on about what gender is, what it means to be a man or a woman, individuals who experience gender dysphoria -- what is the proper way to address that? We all are familiar with the one view that you can only give affirming treatment. We should allow for surgical intervention; we should allow for medicinal treatment to try to suppress hormones or provide cross hormones and those types of things. And we've seen the controversy and the challenges that's arisen in that context.

 

We've seen other countries, European countries like England, have started to back away from that and say, we need to provide a more holistic approach where we provide -- often in connection with gender dysphoria, there are a lot of other mental health, emotional wellness issues going on, and more and more people are saying, "Look, we need to provide a more holistic approach and make sure that we're addressing all of those issues before we do more dramatic treatments." These are very difficult issues, and we acknowledge the difficulty for individuals who experience gender dysphoria. We acknowledge the reality of good people who live different lifestyles, have different values. And part of living in a pluralistic society is being able to recognize that we will have disagreement, but we can still respect each other.

 

So we agree with teaching children respect and inclusivity. We just don't think the right way to do that is by forcing one viewpoint. That actually has the reverse effect, that when you pressure people against their beliefs to say or participate in things that they object to, they tend to dig their heels in and become more obstinate and resistant. We believe in our country, the First Amendment protects a system where we believe in using persuasion, reasoning, the best arguments to help win people over, and living side by side. And the opt outs are really, just, to me, part of the American genius that we say, "Look, we can allow people to opt out. If most parents in Montgomery County want their children to be read these storybooks, they can do that in the public schools, and we can allow the other parents to opt their children out." That's how you actually, in practice, live side by side with each other instead of creating community contention and making people feel like they're not part of the system. And I think this is -- if you look in some countries where they're having challenges based on either religious differences or racial differences, a lot of that arises when they don't allow individuals to participate fully in the system.

 

So if you're forced to live on the outside because you want to live your religion, and you're not allowed to be open about your religion in public life, and you're forced into the outside, you lose the benefits of -- many of the benefits of society. So you tend to be more economically, socially oppressed, and you feel resentment toward the system. Whereas if you allow people to opt out for the narrow things that they can't do, then they feel like they're still protected by the system, they're invested in the system, they want to uphold the system. And so what we're really saying is, let everyone benefit from the First Amendment. Let those that want to be taught the books be taught the books. That's what -- the school board was elected democratically. But the constitution also preserves the right then to step out for those things that you don't agree with. And that's really the best way to promote inclusivity, promote civic harmony, and allowing people to live side by side, even when they have strongly differing points of view on complicated issues.

 

Emilie Kao:  Yes. And you compare the parents in your case to conscientious objectors. And, of course, we have a long history in America of recognizing the rights of conscientious objectors to mandatory military service. So I thought that was a very interesting comparison. Well, in our final minutes, why don't we turn to some of the audience questions? I think one of the questions is, "Tell us about your thinking about going to federal court versus the Maryland court." You also raised Maryland law claims.

 

Eric Baxter:  We did raise Maryland law claims. Our main claims are federal First Amendment or due process Fifth and Fourteenth Amendment claims. And so for that reason, we wanted to be in federal court. Some of the state claims -- it's not clear, for example, that you have a private right of action under the Maryland law that requires opt outs from the instruction on family life and human sexuality.

 

So there are various reasons, concerns about going to that. We think this is an issue that's really important in the federal courts. The Supreme Court hasn't spoken on the parental rights issue for some time. There are procedural reasons why it's easier for cases to move quickly in the federal courts than in the state courts. And since they're primarily federal rights that we're pursuing, that's where we wanted to be.

 

Emilie Kao:  Okay. Here's another question. "Will your case, if you're successful, also protect the rights of foster parents and guardians in addition to biological parents?"

 

Eric Baxter:  Yeah. It's a great question. There are a number of cases, including a couple that we've been involved with, where, for example, states are imposing requirements on foster parents that they must agree that they would affirm a child's chosen gender as opposed to their biological sex, that they would affirm their child's choices on issues of sexuality and gender if they adopt or foster, and often using religious concerns about that approach as a way to bar families from fostering and adopting.

 

So I do think that if the Supreme Court were to take this case and address these issues, it would be helpful in those cases because the Court would be articulating the scope of the parental right in the education context. But I think it would speak also to just the general right to be able to participate in, for example, in government programming, education, foster care, adoption, that you should be able to access those services without being pressured to curtail your religious beliefs on issues regarding family life and human sexuality.

 

Emilie Kao:  Yes. And your religious beliefs should not exclude you from participating in foster care and adoption, as we've seen with several cases that Becket has and ADF has as well. I think one of the big concerns that people have about the types of things that are being taught in schools these days is just the age appropriateness. I mean, you mentioned that these children could be, I think you said, as young as -- did you say three and four years old? I mean, such a young age. Could you speak more to the concerns about the age appropriateness of what's being taught in addition to the conflict with the religious beliefs?

 

Eric Baxter:  Yeah. Right. In preschool, you would have kids who are three turning four early in the school year or four. So very young kids who are being taught some of these issues. I'm sure that the school board acted with the purest of intention in -- I believe that they sincerely want to promote inclusivity. I think that they are doing it in the wrong way and in a way that could backfire and, in a way, certainly that violates the constitution. But there are other concerns, obviously, with having children speaking to adults who are, in a formal sense, strangers on issues about sexuality and gender. There's, again, a long-standing tradition that you don't, because of the risks, the susceptibility, the vulnerability of children to abuse, it's inappropriate for adults to be desensitizing them about these issues or making them feel comfortable talking to adults who aren't their families or who don't always have their best interests at heart.

 

And so I think that's why the Montgomery County principals themselves wrote and said, "Look, we don't feel comfortable teaching these books in the classroom." They said it's inappropriate to be teaching about playground romances to children of this age, regardless of their sexual orientation. And I think that's them speaking to this general understanding we have that children, on these types of issues, because children [inaudible 52:48]. Yeah. Just should they have the right to be taught these issues under the supervision of their parents, that they have the protection, the ability to go to their parents, to speak to their parents openly, that there aren't other adults who are speaking about these in context that the parents don't know about and understand that may make their children -- in ways that may make their children more vulnerable to abuse or things like that.

 

Emilie Kao:  Thanks. I think we have time for one final question, and the question is about the religious beliefs and the free exercise rights of the children themselves. Is this an issue in the case?

 

Eric Baxter:  Yes. We've asserted the rights on behalf of the parents and the children. And just like the Montgomery County guidelines themselves say, if either the parents or the children think it would violate their religious rights, then they have the right to opt out. So, of course, when you're in pre-K through fifth grade, most children can only act through their parents in a legal sense, of course. And so the rights are fairly mixed, combined in these situations. But we do think that children themselves should have the right to opt out when they believe that their religious beliefs are burdened by the instruction of the school.

 

Emilie Kao:  Is there anything else you want to share with the audience about this case?

 

Eric Baxter:  I think it's just such a hugely important case, this idea of parents being able to control the upbringing of their children. We developed in this country a wonderful public education system. We have wonderful teachers and people who are doing their best to help support all students. And that's a wonderful system, but it shouldn't override the ultimate responsibility and right of parents to decide how these sensitive and complex issues are taught to their children. So we're hopeful that the Supreme Court will look at these issues again and uphold the right of parents to be the final decision makers on these types of issues.

 

Emilie Kao:  Excellent. Well, thank you so much for explaining the case to us. It is such an important case that will impact so many parents, and I think has significant implications for, as you said, parental rights, but also religious pluralism in this country. So thank you again, Eric, and all the best.

 

Eric Baxter:  My pleasure.

 

 

Chayila Kleist:  And I'll just chime in. On behalf of The Federalist Society, thank you, Mr. Baxter, Ms. Kao, for joining us today. We really appreciate you lending us your time and your expertise. Thank you also to our audience for joining and participating. We welcome listener feedback by email at info at fed-soc.org. And as always, keep an eye on our website and your emails for announcements about other upcoming virtual events. With that, thank you all for joining us today. We're adjourned.