MCPS Lawyers Are Asking For Time

The citizens advisory committee, you know, had its last two meetings cancelled, after making progress in evaluating and recommending a new framework for the curriculum. The recommendation was passed to the school district, they made some modifications, and it went to the Board of Education, who approved it.

Great, we're thinking, let's get this thing put together, let's get the facts to our students.

Then nothing. Cancellations, rumors. I got a voicemail saying that people were saying the curriculum was going to be delayed by a year. People inside MCPS didn't seem to know about that, it's just a rumor.

Last week, former committee chair David Fishback sent a letter to the school board, explaining some aspects of the judge's ruling in last year's lawsuit. In particular, he addressed the idea of "viewpoint discrimination:"

The only case cited by Judge Williams for his conclusion that the "other side" must be presented, lest MCPS violate the freedom of speech rights of those who believe that homosexuality is a disease and can be "cured," was Rosenberger v. Regents and Visitors of the University of Virginia, 515 U.S. 819 (1995). Rosenberger did not involve a school's choice of curriculum but, rather dealt with the University of Virginia's policies on funding student publications. Under the University's rules, any student publication that met certain neutral criteria could get funding. Rosenberger met all the criteria, but the University turned him down because the publication was Christian-themed. The University feared that if it funded the publication, it would violate the Establishment Clause of the First Amendment. The Supreme Court ruled otherwise, finding that the University's decision constituted viewpoint discrimination in violation of the freedom of speech portion of the First Amendment. But there is a huge difference between a public forum - which was the case in Rosenberger - and curriculum choices, which is what last year's lawsuit was about. MCPS stood its ground on that issue. If CRC/PFOX did not like it, they could have declined to sign on to the settlement agreement. They agreed to withdraw the lawsuit, it seems to me, because they knew the ground upon which they stood legally was quicksand.

Other than Judge Williams' opinion last year, NO federal court decision has ever interpreted Rosenberger to mean that schools' curriculum choices must, as a constitutional matter, present the "other side" of issues. Indeed, a review of all cases citing Rosenberger establishes the opposite: That the Constitution imposes no such burden. For example, just last December, in Chiras v. Miller, 432 F.3d 606, 612-13 (5th Cir. 2005), the United States Court of Appeals for the Fifth Circuit set forth the distinction between the public forum issue presented in Rosenberger and decisions about curriculum presented in Chiras (and, indeed, presented by the development of the revised health curriculum here). Writing for the court, Judge W. Eugene Davis (a Reagan appointee to the bench) noted that the Supreme Court in Rosenberger made this distinction:

When the University determines the content of the education it provides, it is the University speaking, and we have permitted the government to regulate the content of what is or is not expressed when it is the speaker. . . .

432 F.3d at 613, quoting Rosenberger, 515 U.S. at 833. See also Downs v. Los Angeles Unified School District, 228 F.3d 1003, 1008, 1012-16 (9th Cir. Cir. 2000), where the Ninth Circuit, in a decision written by Judge Stephen Trott (also a Reagan appointee), made precisely the same distinction, citing Rosenberger.

OK, you legal-eagles, go look those cases up. The idea that you have to teach intolerance alongside facts is crazy, and there is no legal precedent for worrying about it.

But it turns out the district's lawyers are worrying. On May 9th, Deputy Superintendent Frieda Lacey sent a memo to the Superintendent that discussed the proposed timeline for this project, and then said:

Legal counsel were provided the components of the recommendations and have requested additional time for their review of the documents. I recommend that counsel be granted the requested additional time to ensure a thorough legal review. This additional time will necessitate a revised timeline. After our next meeting with legal counsel on May 26, 2006, we will have a clearer understanding of their request and will be in a better position to propose a revised timeline. I will continue to keep you updated as we proceed.

My first thought when I see that is, which lawyers are these? Are these the MCPS lawyers who gave away the farm last time? Or are these some higher-priced professionals from downtown? I'd definitely have more confidence in the downtown guys, I don't think the district's lawyers had any idea what was going on when they were taken to court last year, and don't expect that they have changed a lot since then.

Superintendent Jerry Weast sent a memo to the Board on May 11th, acknowledging the request for a delay. He wrote:

However, I believe that, given the history of litigation concerning health education, a thorough legal review is warranted. As a result, recommendations will not be ready for the June 13, 2006, Board of Education meeting as previously planned. I have asked Dr. Lacey for a revised timeline that incorporates the in-depth legal review and subsequent delay, including the timing of the planned field tests and implementation of the revised condom demonstration video and revised lessons on sexual orientation, consistent with the recently approved framework on comprehensive education.

Any of several things could be going on here. There may have been some activity in the legal community that prompted a paralytic response from the school district. It could be that MCPS attorneys have suddenly decided to be extra-professional and extra-careful. And it could be that certain people don't want this on the radar screen while Board members run for re-election.

I will take the optimistic view here that knowledgeable lawyers are bolstering the district's position so that it will be defensible under any kind of attack. But I will not be cheerful if these guys hold up the process for a significant length of time. Not-producing a curriculum because you're too careful is exactly the same as not-producing a curriculum because you don't care about teaching the facts to the students of Montgomery County.

Exactly the same.