First Rejects Claims from Parents Angry Over Homosexuality in Elementary Schools
Friday, February 1st by Robert LoblawParker v. Hurley, 07-1528 (1st Cir., Jan. 31, 2008)
Massachusetts was a national leader on the issue of gay marriage, and now some elementary schools are apparently following suit. This does not sit well with all of the parents of school-aged children, including the plaintiffs in this suit against Lexington school officials.
The Parkers complain that their kindergarten-age son was sent home with a “Diversity Book Bag,” which included a book that showed same sex couples as parents. Meanwhile, the Wirthings complain about the story King and King, which was read in their second-grade son’s classroom. From the opinion:
This picture book tells the story of a prince, ordered by his mother to get married, who first rejects several princesses only to fall in love with another prince. A wedding scene between the two princes is depicted. The last page of the book shows the two princes kissing, but with a red heart superimposed over their mouths.
Both sets of parents wanted the right to opt out of any classroom activities or materials that would expose their children to homosexual conduct. But the school districts refused to give the parents any say in the classroom, or even to give them a heads up about the activities in question. So the parents sued under the First Amendment and the Due Process Clause, claiming that the schools were indoctrinating their kids in the homosexual agenda, in violation of the families’ religious beliefs.
The district court threw out their claims, and the First Circuit affirms. The Court explains that parents traditionally have little say in the public schools’ curriculum choices, and “[p]ublic 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.”
Here, the Parkers have no basis for complaint because their son was simply given the option of reading a book that exposed him to same sex parenting. Although the Wirthings’ case is a little closer since their son had to sit through a classroom reading of a book that affirmatively endorses homosexuality, there is no evidence to suggest that their second grader was asked to affirm gay marriage.
I’m not sure how to square this reasoning with cases that have rejected non-mandatory school prayer in light of the impressionability of young children and the coercive nature of a classroom, and the opinion does not really try. Perhaps the Supreme Court will. But whether or not this decision was correct from a constitutional perspective, it’s remarkable to me that elementary schools are pushing the envelope this way. Reading King and King aloud to second graders seems pretty extreme, even for Massachusetts.
February 1st, 2008 at 8:24 am
CA1: anti-gay parents that don’t like gay people lose establishment clause challenge…
Parker v. Town of Lexington, No. 07-1528. I was going to call this breaking news, but it isn’t. A bunch of parents are angry that “[T]hey must be given prior notice by the school and the opportunity to exempt their…
February 1st, 2008 at 9:38 am
Seems like the way to distinguish non-mandatory school prayer is the fact that the “homosexual agenda” is not part of a religious doctrine or practice adopted by the state.
February 1st, 2008 at 12:21 pm
I’m not necessarily disagreeing with what has been said, but I don’t think this has anything to do with religious freedom.
The Constitution does not guarantee the right to be free from a pluralist society. To the contrary, it strives hard to CREATE a pluralist society, or at least to ban Govermental discrimination. And in keeping with that principle, the State has a strong (even compelling) interest in encouraging children to accept tolerance, even though (ironically, because it must be tolerance of difference) it cannot compel them to do so. And that interest is only reinforced by the state’s interest in preparing children for life in a diverse society (as the First points out, Massachusetts has to prepare these kids to live in a state where same-sex marriage is lawful).
Thus, I think the State could encourage students to stand up and say a tolerance crede (at least to the same extent it could encourange them to say the Pledge sans “under God”) without running afoul of the First Amendment.
February 1st, 2008 at 3:33 pm
I think that is a good practical rule that is easy to enforce, but I still question the logic.
Look at it from this perspective: non-mandatory opening prayers are allowed in other public forums (such as legislative meetings) but not allowed in school due to the fact that kids are so impressionable and the school environment is so coercive. But the same argument can be made in favor of school prayer as the First makes for homosexual conduct: exposing children to it is not indoctrinating them, and parents are free to teach children to reject what they are hearing in school and teach their own values instead.
But I do agree that religious doctrine and practice is a good place to draw a line in a situation where clear lines are necessary.
February 3rd, 2008 at 3:08 am
Linkfest: Gay Rights Updates…
What better way to acknowledge Super Bowl Sunday than with a gaggle of gay goodies? Not much analysis, just pass-alongs.
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ITEM: The big story this week is the ruling by an intermediate appeals court in New York State……
February 4th, 2008 at 3:45 am
But I do agree that religious doctrine and practice is a good place to draw a line in a situation where clear lines are necessary.
But the Ninth Circuit has gone over the line, see EKLUND v. BYRON UNION SCHOOL DISTRICT (upholding teaching of Islam by requiring recitation of Islamic prayer).
Under the Ninth Circuit’s wacky theory the prayer in Schemp and Engel could be upheld provided that the factual record proved that there was no devotional intend. The devotional intend requirement is inappropriate when a school integrates overt prayer and teaching of core religious beliefs in mandatory role playing games.
But of course, everything goes in the name of wishy washy multiculturalism.