Saturday, May 20, 2006

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.


Anonymous Anonymous said...

"And it could be that certain people don't want this on the radar screen while Board members run for re-election."

Congratulations! You've won the Runny Cup.

I don't know if you've heard, but Montgomery County is not exactly a democracy.

May 20, 2006 2:27 PM  
Blogger Dana Beyer, M.D. said...

Montgomery County is not a democracy? And what is, pray tell, your church?

May 20, 2006 3:39 PM  
Anonymous Anonymous said...

Not a democracy. Not supposed to be.

And actually, I misspoke. Monkey County is a democracy. That's why the School Board keeps avoiding facing the electorate with a stand on this issue. Still, it's a malfunctioning democracy that allows its elected officials to dodge accountability. There should be a recall opportunity for the School Board. If there was, they'd be long gone.

May 20, 2006 8:54 PM  
Anonymous Anonymous said...

anon said,There should be a recall opportunity for the School Board. If there was, they'd be long gone

Ah but CRC/PFOX bigots tried it under ""Recall Montgomery Schoolboard." People saw through that bigoted facade of CRC/PFOX so they pushed back and stood up to the bigots.



May 20, 2006 10:43 PM  
Blogger Theresa said...

There is no way to recall the school board by vote or special election, nada.

You would first have to change the laws of Maryland to allow the board to be recalled. They can only be removed by an ethics violoation, and then I believe only by the Superintendent.

I spent half a day researching this.

Believe me, if there had been a way to put it to a vote, I would have love to have seen it.

Then we would really know what the voters thought about teaching kids that "same sex play among adolescents is normal".

May 21, 2006 12:45 AM  
Anonymous PasserBy said...

It would have been even more interesting to see what people thought of the statement, "Sex play with friends of the same gender is not uncommon during early adolescence and does not prove long-term sexual orientation," which is what the original curriculum actually said.


May 21, 2006 12:58 AM  
Anonymous Anonymous said...

Well now Theresa's musing of "same sex play among adolescents is normal" as she says was in curriculum is now exposed as a misconstrual.

Care to clear up that CRC lie Theresa?

Let's see how many times have Theresa and her CRC crew lied about that one thing among many?


May 21, 2006 1:03 PM  
Anonymous Anonymous said...

As Theresa and PB must know, MCPS recognized that that phrase shed more heat than light and was removed from the version that was to be piloted last year. The version that was to be piloted said, instead, "Fleeting [same sex} attraction does not prove long-term sexual orientation."

May 21, 2006 11:50 PM  
Anonymous Anonymous said...

When you think about it who cares?

Let's see what was that about hands falling off or growing hair on palms? Should we worry about that too?


May 22, 2006 12:12 AM  
Anonymous David S. Fishback said...

Anonymous said...
As Theresa and PB must know, MCPS recognized that that phrase shed more heat than light and was removed from the version that was to be piloted last year. The version that was to be piloted said, instead, "Fleeting [same sex} attraction does not prove long-term sexual orientation."

May 21, 2006 11:50 PM

I posted the above. I choose not to post anonymously. I guess I did not push the right keys last night.


May 22, 2006 6:42 AM  
Blogger JimK said...

This little exchange is a perfect encapsulation of "the problem" here in Montgomery County. The original draft of the proposed curriculum contained some wording that essentially told teenagers that whatever they did when they were younger, for instance while they were playing doctor, was just a game. It said if you did something with someone of your own sex, it doesn't mean you're gay. That's a kind and benign thing to tell kids, and it's true.

But the CRC, of which Theresa was a core member, twisted phrases like this to mean something entirely different. They wanted you to believe that the curriculum actually said "same sex play among adolescents is normal".

Well, it didn't.

And why did they want to say it did?

The CRC wasn't really complaining about a health curriculum. They didn't care what was actually in it. Their mission was to stir up outrage. They didn't want to find and repair flaws in the curriculum, they wanted to throw the whole thing out, and with it the whole school board -- as Theresa's comments here reflect.

There wasn't much that a reasonable person would complain about in the proposed curriculum. There were hot-buttons, places where the nuts could pretend they were offended, so they could try to seize power in our county, but they never did find much of substance to point to as being unacceptable. Instead, they had to misrepresent it, and then argue against the misrepresentations.

It didn't work, and it is pathetic at this late point to see them still trying to play this twisted game.


May 22, 2006 9:37 AM  
Blogger andrear said...

Guess what- if MCPS tries to teach the nonsense CRC wants -I'd be glad to sue them this time. It won't be the first time I've been part of a group going against MCPS and its attornies. Just to let everyone know that I am for knowledge and the truth- not MCPS.


May 22, 2006 11:03 AM  

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