Justice Kavanaugh Sparks Surprise in Heated Supreme Court Hearing
In a significant turn during a high-profile Supreme Court hearing on Tuesday, Justice Brett Kavanaugh expressed that he was “surprised” during discussions about a Maryland school district’s handling of LGBTQ+ themed books in its elementary curriculum.
The U.S. Supreme Court appeared poised to weigh in on a dispute brought by Maryland parents objecting to the inclusion of certain reading materials on religious grounds. The case centers on claims that Montgomery County Public Schools (MCPS) required students in pre-K through elementary grades to read books containing transgender and LGBTQ+ characters, without offering an “opt-out” option for families with religious objections.
Justice Kavanaugh, a lifelong resident of Montgomery County, made his reaction clear during oral arguments. The comment came amid growing legal debate surrounding parental rights, religious freedoms, and education policy.
The controversy began in fall 2022, when the Montgomery County Board of Education rolled out over 20 titles under its “Pride Storybooks” initiative, aiming to promote “inclusivity” among students from pre-K through eighth grade. Initially, the program included a notice policy, informing parents when such content would be used in classrooms—alongside an option to exclude their children.
However, by 2023, the school district announced a policy reversal: parents would no longer be notified nor allowed to opt out. This decision prompted backlash from a diverse coalition of Muslim, Jewish, and Christian families, who later filed a federal lawsuit alleging a violation of their First Amendment rights.
The case, Mahmoud v. Taylor, was first heard by the U.S. District Court for the District of Maryland in May 2023. The court sided with the school district, and that ruling was later upheld by the Fourth Circuit Court of Appeals.
Seeking further redress, the families turned to the U.S. Supreme Court in September 2024, with legal support from Becket, a nonprofit specializing in religious liberty cases. The Court agreed to hear the appeal in January of this year, placing the case among a growing list of education-related controversies involving the intersection of religious freedom and curriculum decisions.
The district in question serves more than 70,000 students, and the outcome of this case could have implications far beyond Montgomery County, potentially reshaping how public schools nationwide approach curriculum transparency and parental rights.
A transcript of the noteworthy conversation with Kavanaugh can be found below:
Kavanaugh: “The country has opt-outs for all sorts of things. The county has opt-outs for all sorts of things. The other Maryland counties have opt-outs for all sorts of things. And yet, for this one thing, they change in mid-year and say no more opt-outs. I’m just not understanding feasibility.”
SCHOENFELD: “So, again, I think what’s in the record is that, with respect to these books as they were deployed in the classroom, there was high absenteeism in some schools. For example, dozens of students being opted out in, I think Mr. Baxter said the average size of an elementary school in Montgomery County is 700 students, so each grade is 125. If you have dozens of students walking out, making arrangements for their students to have adequate space and supervision and alternative instruction, I think is infeasible. And that’s —“
Kavanaugh: “But they do it for all sorts of other opt-outs.”
SCHOENFELD: “They don’t do it for all sorts of other opt-outs. There’s a limited universe of things that students can opt out from. The family life and healthy sexuality curriculum stands alone. It is mandated by the state. It is something where you are able to predict precisely when the curriculum is going to be deployed. There’s a four —“
Kavanaugh: “It’s the most similar, substantively, to what we have here and there’s an opt out allowed there. I guess I’m not understanding why Montgomery County School Board stands alone, I think in the country. You can tell me if there’s another school board that’s done something like this.”
SCHOENFELD: “I don’t — I apologize.”
Kavanaugh: “The kind of books that are being used and prohibiting opt-outs, and I guess I’m just not understanding. The whole goal, I think, of some of our religion precedents is to look for the win-win, to look for the situation where you can respect the religious beliefs and accommodate the religious beliefs while the state or city, or whatever it may be, can pursue its goals. And here they’re not asking you to change what’s taught in the classroom. They’re not asking you to change that at all. A lot of the rhetoric suggests that they might have — that they were trying to do that, but that’s not what they’re trying to do. They’re only seeking to be able to walk out so that they don’t have — so the parents don’t have their children exposed to these things that are contrary to their own beliefs.”
SCHOENFELD: “I understand, your Honor, and there may well be circumstances where a school can —“