Monday, February 26, 2007

Parents' challenge to gay-positive curriculum dismissed

Massachusetts's federal district court on Friday dismissed a suit by parents challenging the use of gay-positive books in their children's elementary classrooms. The parents objected particularly to the presence and occasional use of storybooks such as King and King, Molly's Family and Who's in a Family?, which positively depict same-sex couples and families. Since the parents believe that homosexuality is immoral, they claimed that the curriculum violated their right to raise their children and to exercise their religion.

In a strict sense, the dismissal in this case breaks no new legal ground. The district court was bound by First Circuit Court of Appeals holding in Brown v. Hot, Sexy and Safer Productions, 68 F.3d 525 (1st Cir. 1995), which held that "In Brown, the First Circuit held that the constitutional right of parents to raise their children does not include the right to restrict what a public school may teach their children and that teachings which contradict a parent's religious beliefs do not violate their First Amendment right to exercise their religion."

The district court's view of Brown as indistinguishable from the present case, however, is significant, and its discussion of the interests of students who have queer parents or may be queer is even moreso.

Brown concerned a high school assembly in which an outside presenter used a particularly salacious approach to promote safer sex. (Very much the sort of edgy presentation I once gave to college students, actually. While the use of such an over-the-top approach with high school students surprises even me, I've no doubt that parental objections directed to school authorities would be sufficient to ensure a more toned-down approach in future.) That the present case concerned elementary students might at first glance suggest that more deference to parents is warranted, but Brown's holding, based in essence on the discretion required by all public schools, applies equally at all levels. Brown's holding has been followed by the other circuits, and the district court was right not to deviate here.

The court noted multiple reasonable bases for the inclusion of positive discussions of queer families in the curriculum: fostering mutual respect in a diverse nation; eradicating past discrimination; preventing future discrimination; and creating a learning environment in which queer students and students with queer parents can excel.

But its most interesting comments concerned the future of this dispute outside of federal court.
The parents are free to pursue in state court a claim that the curriculum violates a state law guaranteeing a parental opt-out for any curriculum that "primarily involves human sexual education or human sexuality." The State argues that the statute does not apply. The court urged the parties to seek a compromise out of court, but acknowleged that
Finding a reasonable accommodation may be a challenging task. Allowing parents to exempt their children from classes primarily involving human sexual education may not injure the value of those classes for the students who remain. However, as Ralph Waldo Emerson wrote in his journal, " 'I pay the school master, but 'tis the school boys that educate my son.' " [...] An exodus from class when issues of homosexuality or same-sex marriage are to be discussed could send the message that gays, lesbians, and the children of same-sex parents are inferior and, therefore, have a damaging effect on those students. Cf. Brown v. Board of Education, 347 U.S. 483, 494 (1954). It might also undermine the defendants' efforts to educate the remaining other students to understand and respect differences in sexual orientation.
An opt-out for sex ed risks no implied message about any particular group of people. A similar treatment of any discussion of same-sex relationships has quite different applications. The court's citation to Brown v. Board here is wholly appropriate (notwithstanding subsequent criticism of the education studies cited in that case), but nonetheless amazing.

This dismissal will almost certainly be upheld on appeal; it will indeed be interesting to see what, if any, compromise the parties may be able to reach.

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