The Superintendent's Order

A couple of people sent me copies of the state Superintendent's order, explaining why she decided not to stop the pilot testing. I have put a copy HERE. Enjoy. [Update: this and other curriculum documents can be found HERE]

Look, let me apologize up front, I don't know this legal stuff, so anything I say about this can be wrong. I have been wrong before about it, so really, don't trust me as a legal expert. I stay out of court as much as I can, as a rule of thumb.

It seems to me that this was very carefully worded. The bottom line is that the two sides are just about equal, and tie goes to the school district:

In my view, the Appellants’ arguments on the merits are equally matched by the local board’s response to those arguments. Therefore, harm and the public interest are the deciding factors in whether to grant or deny the request for stay. I have concluded that, because participation in these classes is entirely voluntary, the harm to those students that the Appellants want to protect is virtually non-existent.

That's the bottom line. A lot of stuff happens in the lines above that, though. And as you'll see ... there's no tie.

It starts with a section called "Order," where State Superintendent Grasmick explains what her role and responsibilities are, and notes that four factors decide whether she will grant a stay:

• the likelihood of success on the merits;
  
• the likelihood of irreparable harm to the plaintiff if the stay is denied
  
• the likelihood of harm to the defendant if the stay is granted;and
  
• the public interest.

Then, a little background, some paragraphs about the curriculum, supplied by the county -- one-paragraph summaries of the three sets of classes.

Then, the "Legal Analysis." She starts with "Likelihood of success on the merits," and calls it a tie. Or, as I usually say to my buddies, the "likelihood of success on the merits, at best, rests in equipoise."

Then she considers the "balance of harm." There's some good stuff in this section -- she is definitely soft-pedaling her opinion here, maybe even being nice. Will the field testing cause irreparable harm to students? First point:

The Appellants assert that field testing the two 90 minute lessons in the 8th and 10th grades in the selected schools will cause “real harm to students” ... I point out, however, that only those students with written parental permission can attend the classes. Therefore, by not submitting the written permission, parents with objection to the content of the lesson can protect their children from harm.

That one was easy.

Then she catches them distorting the truth about the "opt-out."

Appellants contend, however, that their children will be “constrained to the library for six weeks of independent study ...[d]uring that six weeks period, they have no teacher, no class, and are fully isolated... ["] The local board has clarified that such is not the case.

(I am editing out the legal stuff. Oh, also, I put some quotation marks in brackets that seemed like they belonged there.)

OK, they accept the school district's explanation about that, that makes sense.

Then, a quick zinger -- remember, it was going to be terrible for these poor kids to be seen by their peers going to the library when everybody else was learning about sex:

Second, I do not view opting in/opting out as a “traumatic” matter. I view this more like choosing or not choosing to take a two-lesson mini-course in a controversial subject. Some students and parents will decide to do so; some will not.

That's easy, too -- trauma, no.

Then Dr. Grasmick addresses this issue:

The Appellants assert that the field test will inflict a constitutional injury on the students which “all courts agree...is irreparable harm.”

She reviews in a few sentences the 2005 ruling (she says 2004), and concludes:

There have been significant changes in the curriculum since then. It is my view that the merits of the First Amendment arguments here are balanced equally on each side. I do not have a degree of certainty that constitutional injury causing irreparable harm is present here.

Yeah, actually it's a whole new curriculum.

But this next part is what I loved the most, my very favorite part, where she quotes Judge Williams from last year's lawsuit:

The Appellants also argue that “[c]hildren’s lives are at stake here” because students will not be taught the dangers of anal intercourse... The local board responds that such information is contained in other parts of the health curriculum... Appellants disagree... On this issue of harm I am guided by the words of the federal court in its decision in 2004:

“Moreover, the harm that Plaintiffs posit is highly speculative and attenuated. It would require more than a few logical leaps for this Court to find that MPCS students presented with the Revised Curriculum would suddenly choose to engage in promiscuous, unprotected, homosexual sex— adhering to the Revised Curriculum’s message of gay tolerance but somehow overlooking the even more forceful message of safe sex within the confines of a monogamous relationship. This is not the type of “actual and imminent” harm sufficient to demonstrate irreparable injury for the purposes of a temporary restraining order.”

Yes, in other words, this was bull-oney then and it's even more bull-oney now that they changed it. Those "more than a few logical leaps" the CRC wanted the reader to take are just a little too acrobatic.

Then she addresses the whining complaint that the curriculum will label bigots like the CRC as "homophobic." She notes that the school district "adamantly disagrees," and notes that the county asserts that:

.. the two lessons are designed to promote tolerance and respect for everyone, and that “The Revised Lessons expressly instruct that ‘just as stereotyping others based on sexuality is not acceptable behavior, stereotyping others based on personal beliefs is also not acceptable’.”

The Superintendent's response to this is perfect:

That issue is just one of the types of issues that field testing can address. Indeed, that is one purpose of a field test – to identify problems and to decide how to fix them. While I fully understand that the Appellants believe strongly that certain students will be harmed, I cannot conclude that they will be irreparably harmed by this field test in which they may decline to attend the 90 minutes of lessons at the 8th grade level and the 125 minutes of lessons at the 10th grade level.

Yes, exactly, you think there's a problem? Let's test it.

Then, bless her heart, she makes an argument that I have made many times, though she is much more eloquent than me:

I have balanced the possible harm to students against the harm to the local board if this field test were stayed and have concluded that staying this field test would be detrimental to the students, teachers and parents of the Montgomery County Public School System. The lessons at issue here have been under development since May of 2005. Four medical consultants worked with the MCPS staff in developing the lessons. A 15 member Community Advisory Committee reviewed the lessons and provided feedback. They met nine times, for many hours, to review and revise the lessons... It is important for all of them to know whether a sufficient number of parents will provide permission for student participation; whether the lessons actually work in the classroom; whether the lessons are balanced and fair; how students react to the content of the lessons; and, ultimately, based on the field test results, whether to move forward toward full implementation.

These classes aren't just something the school district pulled out of a bag. A lot of good people worked hard on this. It doesn't add up, when you learn that these good people -- doctors, educators, citizens -- have conspired to insert covert politically correct code talk between the lines of the curriculum. And so she's saying, let's give it a try.

Here's the part the CRC likes, I'll betcha:

In the meantime, this appeal can move forward for a State Board decision on the merits prior to the start of the new school year. To that end, I encourage the State Board to expedite this matter, if necessary, to assure that a final decision is rendered no later than the July 2007 Board meeting

I don't know how these things work, but the Superintendent is saying the school board will still look it over and decide.

On the issue of Public Interest, the state Superintendent went one-eighty from the CRC. She doesn't join them in their pro-bullying position:

One of serious problems in our schools today is bullying and harassment. Indeed, in 2005 the General Assembly directed school systems to report all incidents of harassment against students based on race, native origin, marital status, sex, sexual orientation, gender identity, religion, or disability. Md. Educ. Code Ann § 7-424. The lessons at issue here address harassment problems as they relate to sexual orientation and gender identity. They emphasize tolerance and acceptance. They address ways to deal with bullying and harassment and how to prevent it. I believe it is in the public interest to field test those lessons to determine whether to move forward with full implementation of a curriculum designed, in part, to reduce bullying and harassment.

She thinks that sounds good. So do I.

Then she gets to the Bottom Line, quoted above, and ends with this:

The Appellants argue that the content of the lessons is inherently harmful because it violates their First Amendment rights. I have read the lessons, and I am not convinced of the certainty of such violations. I am convinced, however, of the value of going forward with the field test. The educational community in Montgomery County has invested hundreds of hours in developing the lessons and needs to know whether or not they work in the classroom. A field test in three middle schools and three high schools appears to me to be a reasonable way to find out. Finally, I believe it is in the public interest to field test these lessons because they focus, in part, on the significant problems of bullying and harassment.

Therefore, for these reasons and for the reasons stated herein, the Request for Stay is Denied.

So what does the CRC have? Equipoise. When I read this, and I see Dr. Grasmick say that the one side balances out the other, I'm hearing that schoolteacher at the end of recess who says, "Ooh, you were all so good and special, I just don't know who is the winner! But I have to pick one, so, OK, Joey, it's you." --After Joey just won every race.

In fact, she didn't see the CRC's point on anything.

Now, I understand the CRC has hope. It Just Might Turn Out that the board shares the CRC's revulsion for gay people, wants children to learn more about anal sex, and feels that tolerance, respect, and empathy are immoral. It Just Might Be that they'll feel a sense of kinship with the fine characters of the CRC and the other groups, and will see the importance of their struggle to ensure that differences of sexual orientation and gender identity are treated with contempt.

I guess we'll find out in July.