Gay roosters with kids? School district's LGBTQ-themed curriculum tests SCOTUS opt-out precedent

What's the difference between promoting LGBTQ themes and "mere tolerance" of people who are not heterosexual or do not identify with their sex?

A legal battle in Massachusetts could flesh out the Supreme Court's months-old Mahmoud precedent, which required a religiously diverse suburban D.C. school district to notify and let Muslim, Christian and Jewish parents opt out their children from LGBTQ "storybooks" and rebuked an appeals court for requiring parents to show specific harm.

Lexington Public Schools went further than Montgomery County Public Schools by creating a "Catch-22 designed to frustrate religious parents" in the Boston suburb, refusing to turn over "curriculum materials in advance" while demanding parents "identify specific objectionable lessons with particularity," reads a Nov. 6 memorandum on the motion for preliminary injunction.

The district responded that a particular book it showed the son of plaintiff "Alan L." – after he asked to see objectionable materials – simply shows various forms of families without endorsing them, a far cry from the "unmistakably normative" storybooks, in the words of SCOTUS, that MCPS forced on kids without exception.

Families, Families, Families! "conveys the message that all family arrangements are equally morally acceptable" by depicting animals in same-sex family structures, Alan L. asserted, but the district retorted that these "creatures … neither marry, nor practice religion, nor operate on a system of morals."

The book doesn't mention "gay marriage or hold out same-sex couples or any other potential family grouping as being morally correct or equivalent to same-sex marriages,” but simply shows that various kinds of families exist, the district said. Its supposedly objectionable curricula is "geared toward mere tolerance."

"This may be the first case of its type in the nation post-Mahmoud," the Massachusetts Family Institute said in a blog post on the motion. "It just might be," LPS counsel Sasha Gill told Just the News when asked if MFI was right.

MFI is representing the father alongside the affiliated Massachusetts Liberty Legal Center, which provided a legal advisory for Bay State parents on how they can use Mahmoud, and the American Center for Law and Justice. California-based Advocates for Faith & Freedom also created a free opt-out form for parents to use nationwide after Mahmoud.

U.S. District Judge Dennis Saylor has yet to rule on the motion for preliminary injunction following the district's opposition last week, but if denied the plaintiff would have to try the 1st U.S. Circuit Court of Appeals, which has a recent record of ruling against parents and students in First Amendment challenges to school decisions.

The 1st Circuit, which had no active Republican-nominated judges until this month, upheld a school district's ban on a student wearing an "Only Two Genders" shirt and another's practice of hiding students' identification as the opposite sex from their parents. 

Justices Samuel Alito and Clarence Thomas blasted their colleagues for rejecting the shirt case, while SCOTUS conferred Friday on whether to hear the social-transitioning case

The 4th Circuit, whose MCPS ruling was overturned by SCOTUS, and the 1st are now the top contenders for "most at odds" with SCOTUS, a reputation long held by the San Francisco-based 9th Circuit before GOP nominees started tilting its rulings rightward, William & Mary Law School professor Jonathan Adler recently said.

'If you love each other, then you are a family'

MCPS repeatedly changed its explanation for refusing notification and opt-outs for parents, waiting until a preliminary-injunction hearing to claim the logistical burden was too great yet never substantiating the difficulty of telling parents its storybooks featured sex workers, kink, drag, gender transitions and elementary-age same-sex romance.

It made the claim yet again on the eve of the school year, when MCPS announced it will notify parents every nine weeks of the topics and reading list for their children's classes and let them opt out, ignoring two years of requests from Just the News to document the burden. 

The lawsuit by Alan L. against LPS, filed Oct. 17, portrays the district as seeking to rewrite Mahmoud just two months after the decision came down, when the "practicing Christian" father asked to opt out his five-year-old son J.L. from the first health curriculum lesson and "all DEI lessons," and to review the curricula for both.

His son's teacher Caroline Chestna gave him "links to generic curriculum overview documents" without details on specific lessons, followed by Director of Elementary Education Andrea So rejecting both opt-outs because they did not clearly identify the "specific required curriculum" or were too vague, according to the suit. 

The father replied the same day So pointed out he didn't invoke "sincerely held religious beliefs," noting he and his son are Christians and reiterating the opt-out demands.

He submitted a public records request for each lesson Aug. 29, receiving only "partial information" that hid specific lessons, while at the same time LPS was secretly showing J.L. "materials that directly violated" the opt-out requests, the suit also alleges.

Alan L. asked Aug. 30 to exempt his son from instructional activities "which cover issues of sexual orientation or gender identity," specifically invoking Mahmoud, but So responded again that he needed to be more specific. After he got a lawyer involved, LPS finally gave Alan L. health curriculum links Sept. 19, except for "Units 2 and 3."

When he noted their absence and received them days later, a month after first asking LPS to show him the curricula, the father learned his son had already been shown an objectionable video, a "read-aloud" from Families, Families, Families! on Sept. 16, the 24-page suit also states.

It shows "two roosters in neckties holding each other and their chicks," saying "some children have two dads," and "two female koalas with their babies," with the same message about mothers. The book concludes that "if you love each other, then you are a family," violating Alan L.'s repeated and explicit opt-outs from LGBTQ content, the suit says.

He believes LPS also showed his son All Are Welcome, a book with illustrations of "gay and lesbian couples and their children, including a pregnant lesbian mother," in the boy's Social Studies Class, while Alan L. was waiting for that curriculum.

The district finally let him review the material in person, when "it was too late," also according to the suit.

Two weeks after filing the complaint, with "no resolution" between Alan L. and the district, his lawyers filed the motion for preliminary injunction against exposing his son to "objectionable content" during the litigation, MFI said Nov. 7.

The memo for PI says SCOTUS "could not have been clearer" just months earlier that LPS's subsequent behavior was unconstitutional, because "schools cannot force parents to choose between their religious faith and the benefits of public education."

Nothing has changed in policy since the initial kerfuffle, the memo says. "Additional Social Studies lessons and other potentially objectionable content are scheduled for the remainder of the school year," LPS will not commit to "honoring future opt-out requests" and keeps demanding Alan L. "identify specific lessons" without giving him information to do so.

The district's opposition to the motion Nov. 19 says that it will address materials case by case with Alan L. to see if he objects to specific content, but it countered his portrayal of All Are Welcome and Families, Families, Families! as "tutorials on the moral equivalency of one’s gayness," in the words of LPS.

It also questioned whether J.L. was even in those classes on the specific days those books were discussed, because the boy has an "individualized education program" that keeps him out of the classroom most of the time and his teachers don't remember him being there.