Thursday, January 31, 2008

What a Bad Day Mad Dad Had

Alas for the Lexington kvetchers, there's no joy in Fundy Town tonight. The U.S. Court of Appeals for the First Circuit went for common sense. They told the Mad Dad and his cohorts they had nothing the federal courts wanted to hear. They said try your luck at the state or town level.

We can see by the 44-page decision took a while. Under Circuit Judge Sandra L. Lynch, Senior Circuit Judge Normal H. Stahl, and Circuit Judge Jeffrey R. Howard, it leaves no wiggle room for slithering upstream to the U.S. Supreme Court. They discussed and ruled on every key case presented by both plaintiffs and defense, and then they stretched to cover possibly related precedent in other cases. The intent seems to be to stop this insanity as far as heavy hitting courts go.

They lost in U.S. District Court 11 months ago and argued the appeal two months ago. Check links there or read today's decision for the gruesome and tedious details.

Today's Highlights

The three-judge panel was amazingly kind to the plaintiffs and provided a wide latitude for the arguments. It's as though the judges all has seen their own kids through the terrible twos and testy adolescent years. The ruling shows a great deal of patience.

Punch Line

The panel rejected the plaintiff's appeals in part and sum. They affirmed the previous decision, as in (page 43):
We affirm the district court's dismissal with prejudice of plaintiffs' federal claims and its dismissal without prejudice of the state claims so that they may be reinstated, should plaintiffs choose, in state court.
In legal terms, with prejudice means don't bother us again on this. Previously, Mad Dad David Parker had been full of bluster on this, as on the way-out-there Pundit Review talk show with Gregg Jackson. He didn't lower his sights to commonwealth courts, but expressed his fantasy that the U.S. Supreme Court would accept an appeal on it. (I snort.)

The Boston Globe got a similar mumble from their attorney, Jeffrey Denner, about a maybe appeal to the nation's highest court. I think he'd better take a good look at the ruling.

No Smelling Salts

In their oral and written arguments, the plaintiffs asserted that books offered or read in the Lexington schools to their elementary children were horrifying and highly sexual. The panel didn't buy this for a moment.

Instead, they concluded (page 40):
(T)hese books do not endorse gay marriage or homosexuality, or even address these topics exlicitly, but merely describe how other children might come from families that look different from one's own."
It is a fair inference that the reading of King and King is precisely intended to influence the listening children toward tolerance of gay marriage. That was the point of why that book was chosen and used. Even assuming there there is a continuum along which an intent to influence could become an attempt to indoctrinate, however this case is firmly on the influence-toward-tolerance end. There is no evidence of systemic indoctrination.
The melodramatic presentation that these two books were overtly sexual or that they interfered with these two sets of parents' rights to educate their children in their chosen religion and morals did not sway the panel. Instead, they held that there was no legal basis for such claims.

No Religious Trump Card

The crux of the plaintiff's appeal into a federal court was the assertion that the school's unwillingness to change what they taught or to opt the children out of any discussion the parents specified. They claimed violation of their First Amendment Rights to a free exercise of their religion.

The panel noted that this "is not a general protection of religion or religious belief. It has a more limited reach of protecting the free exercise of religion. page 33)" In short, as the defendants have contended, the parents can teach what they like and that is by society's reckoning their duty. They just may end up telling their kids that they disagree with some of what they hear in school.

Also, the plaintiff's arguments repeat that the books and diversity lessons were indoctrination that required the kids to endorse same-sex marriage and homosexuality. The panel had none of this either. They noted that the nation's high court had no indoctrination test for religious exercise (page 38). Moreover, they added that "Plaintiffs' pleadings do not establish a viable case of indoctrination, "even assuming that extreme indoctrination can be a form of coercion (page 39)."

The panel in effect told the plaintiffs to get with the program, as in (page 39):
First, as to the parents' free exercise rights, the mere fact that a child is exposed on occasion in public school to a concept offensive to a parent's religious belief does not inhibit the parent from instructing the child differently.
They went on in what surely will hearten educators to write (page 41), "Public schools are not obliged to shield individual students from ideas which potentially are religiously offensive, particularly when the school imposes no requirement that the student agree with or affirm those ideas, or even participate in discussions about them."

Likewise, for the diversity book bag (optional), they ruled that this was a form of notification and the parent could choose to read them with the kids or not at all. In contrast (page 42), "...the plaintiffs' children were not forced to read the books on pain of suspension. Nor were they subject to a constant stream of like materials. There is no allegation here of a formalized curriculum requiring students to read many books affirming gay marriage."

Even for the son to whom the second-grade teacher read the King & King, the panel noted that this was no big legal deal. As they wrote (page 42), "Because plaintiffs do not allege facts that give rise to claims of constitutional magnitude, the district court did not err in granting defendants' motion to dismiss the claims under the U.S. Constitution." That would be a legal checkmate as far as advancing in federal courts.

No to Control Types

The plaintiffs have also contended repeatedly what we hear from many self-proclaimed parents' rights advocates. As the ruling put it (page 28), "Plaintiffs' opening premise is that their rights of parental control are fundamental rights." That's heavy stuff in such suits, but not convincing here.

The suit and appeal assert (page 30) that "their request for notice and exempti0n is simply a logical extension of their parental rights" under cases they cited. Instead, the panel used more common sense and case law based judgments that:
  • "The schooling cases cited...'evince the principle that the state cannot prevent parents from choosing a specific educational program. (page 29)"
  • "We have found no federal case under the Due Process Clause which has permitted parents to demand as exemption for their children from exposure to certain books used in public schools. (page32)"
Nothing in the plaintiffs' arguments originally or on appeal convinced the judges they were due the level of control they demanded (page 32).

Diversity Mandates

As well as bringing in other case law to exclude upward appeal, the panel recapped the educational options and requirements of the schools. They noted:
  • "By statute, the actual selection of books is the responsibility of a school's principal, with the approval of the superintendent of schools. (page 7)"
  • Commonwealth law, Chapter 69, Section 1D, "...mandates that the standards 'be designed to inculcate respect for the cultural, ethnic and racial diversity of the commonwealth.'" "Further, '(a)cademic standards shall be designed to avoid perpetuating gender, cultural, ethnic or racial stereotypes. (page 5)"
  • "(T)he learning Standards provide that by grade 5, students should be able to '(d)efine sexual orientation using the correct terminology (such as heterosexual, and gay and lesbian). (page 6)"

Thanks for Playing

We can certainly see why an educational system so slanted to reality and compassion would be a problem for those with very narrow views of their world. It may be scant comfort, but the panel's ruling made a passing acknowledgment of this (page 43) — "We do not suggest that the school's choice of books for young students has not deeply offended the plaintiffs' sincerely held beliefs."

However, the solution was to take their act elsewhere, as in " recourse in the normal political process for change in the town and state."

February Fool's Day Update: Please forgive me if you hear my chuckling. According to the dark and dim over at MassResistance, plantiffs' attorney Denner does claim there's this windmill (with billable hours) he has to attack. "(T)hey are immediately preparing to go before the US Supreme Court on this case. 'We are fully committed to go forward,' he said today. 'We will continue to fight on all the fronts that we need to.'"
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