Monday, February 4, 2008

1st Cir. upholds gay-positive curriculum

Nearly a year ago, I blogged about the dismissal by the District of Massachusetts of a constitutional challenge to Lexington, MA's gay-positive elementary school curriculum. The plaintiffs -- two sets of parents -- argued that the exposure of their kids in kindergarten and first grade to books that positively portrayed same-sex relationships and marriages violated their rights of Free Exercise and their fundamental privacy and parental rights. (Although the Massachusetts constitution provides stronger Free Exercise protections than the U.S. Constitution, the parents asserted only federal claims.) The First Circuit has now affirmed that dismissal.

As most people know, parents are normally allowed to "opt out" for their kids when it comes to sex ed in school -- and this is true in Massachusetts as well. But as the district "has declined to apply this statutory exemption to these plaintiffs on the basis that the materials do not primarily involve human sexual education or human sexuality issues." That is, it's not "sex ed" anytime same-sex relationships or marriages are mentioned in the classroom, just as it's not "sex ed" anytime mixed-sex relationships or marriages are mentioned. The plaintiffs, of course, think otherwise.

Those interested in Free Exercise doctrine will note with interest that the First Circuit declined to "enter the fray" over the meaning of the Supreme Court's reference to "hybrid" Free Exercise claims in Employment Division v. Smith. Indeed, the court said it did not need to determine the level of constitutional scrutiny at all because teaching about gay couples simply was not a burden on the parents' or kids' religious exercise. Having chosen to live in a state that recognizes gay couples and send their children to public school, they must abide the curriculum, which does not require children to affirm any belief about gay couples or prevent parents teaching their children about their religious beliefs. The court treated the fundamental rights claims similarly, relying on copious precedent that while parents have a right to direct their childrens' upbringing, that right does not give them any control over the specifics of the curriculum. The court noted that the parents were free to engage "the normal political processes" to change the curriculum.

This doesn't mean litigation over queer-positive curricula is over. In 2005, a judge of Maryland's federal district court -- which is in the Fourth Circuit, not the First -- temporarily enjoined Montgomery County's curriculum for a likely Establishment Clause violation, because it "present[ed] only one view on the subject — that homosexuality is a natural and morally correct lifestyle." The district (where I happen to live) has approved a revised curriculum, which is bound to be litigated afresh. The district court's conclusion seems quite questionable, suggesting as it does that the Establishment Clause is violated anytime a curriculum appears to favor a point of view on any subject on which any religious group has a strong opinion. That could be quite problematic for both the physical and social science curricula. Still, I'd guess that by softening its message a bit, and giving more neutral acknowledgment (however brief) to other points of view, the new curriculum will pass muster. I guess we'll see.

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