COURT OF APPEALS AGREES WITH MCPS POSITION ON AUTHORITY TO DECIDE CURRICULUM
In its August 10, 2006, decision in Child Evangelism Fellowship of Maryland v. Montgomery County Public Schools , 2006 WL 2294272 * 4 n. 2 (4th Cir.), the United States Court of Appeals for the Fourth Circuit stated, unequivocally, that "when the government alone speaks, it need not remain neutral as to its viewpoint. See Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 833 (1995) ( '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 or when it enlists private entities to convey its own message.' )." The opinion may be found at http://207.41.17.117/ISYSquery/IRL9BA.tmp/2/doc or http://pacer.ca4.uscourts.gov/opinions/opinion.php
Rosenberger was the case upon which Jerry Falwell's Liberty Counsel relied upon for its argument, accepted by Judge Williams, that if the MCPS health education curriculum was to say anything about sexual orientation (there, the viewpoint of the mainstream medical and mental health professional associations), then "the other side" (there, the contrary viewpoint of Falwell, Dobson, etc., that homosexuality is a disorder and can be "cured") would have to be presented.See Citizens for a Responsible Curriculum v. MCPS, 2005 WL 1075634 (D. Md. 2005) at p. 12.
The Fourth Circuit's statement in Child Evangelism Fellowship (CEF) makes it crystal clear to all judges within the Fourth Circuit (including Judge Williams, should a later MCPS curriculum case reach him) that no First Amendment doctrine requires MCPS, in order to add to its health education curriculum the wisdom of the mainstream health associations, to also include "dissenting views" of the Falwell/Dobson-related groups. Statements essentially identical to that of the Fourth Circuit have been made by the Fifth and Ninth Circuits, in decisions written by appointees of President Reagan. See Chirac v. Miller, 432 F.3d 606, 612-12 (5th Cir. 2005); Downs v. Los Angeles Unified School District, 228 F.3d 1003, 1008, 1012-16 (9th Cir. 2000). Indeed, since the Falwell/Dobson viewpoints are theology, not science, their inclusion in the health curriculum would violate the First Amendment's Establishment of Religion clause, as the federal court noted last year in the Dover, Pennsylvania, case involving "intelligent design." Kitzmiller v. Dover Area School District, 400 F.Supp.2d 707, 765-66 (M.D. Pa. 2005).
The "viewpoint discrimination" holding by Judge Williams was directly contrary to Rosenberger, and that is why the settlement agreement ending the lawsuit included that statement that MCPS retained the right to decide what would be in the curriculum. Now that the Fourth Circuit (of which Maryland is a part) has confirmed that curriculum in public schools is not within the "public forum" arena, as to which "all sides" of an issue must be given a platform, any attempt on the part of Liberty Counsel or anyone else to derail the upcoming curriculum revisions on a "viewpoint discrimination" ground not only will fail (that was clear even prior to CEF), but might even subject counsel raising it to sanctions for the filing of a frivolous lawsuit.
The CEF case itself involves whether the standards MCPS uses for deciding what flyers will be sent home in students' backpacks were specific enough to pass constitutional muster, or whether they left MCPS personnel with "unbridled discretion" that could lead to unconstitutional viewpoint discrimination. The Court found that the MCPS standards were inadequate, and sent the case back to the lower court for further proceedings. That complex case addresses the nature of the limited public forum created by the school system's policy of permitting notices to be send home with students. In such a situation, the Court explained, the government may impose restrictions, but such restrictions "must be both reasonable and viewpoint neutral." 2006 WL 2294272 * 5, Slip op. at 10. This is a knotty problem involving the limited public forum which could be deemed as being created by the backpack flyer system. What is significant for the issues surrounding the MCPS health education curriculum is the Court's explicitdistinction between public forums created by public educational institutions -- which may not discriminate based on viewpoint -- and educational content in the classrooms. As noted above, the Fourth Circuit, in setting forth the framework for its analysis, explicitly recognized the distinction between, on the one hand, situations in which the government (including a school system) has created a public forum subject to First Amendment viewpoint neutrality and, on the other hand, "the content of education," which does not require such neutrality So whatever problems the CEFruling presents to MCPS regarding its backpack flyer policy, the decision reiterates the rule of law that demonstrates that Judge Williams' "viewpoint discrimination" ruling in May 2005 was simply incorrect and, if ever asserted again, would be summarily reversed on appeal.
David S. Fishback
Rosenberger was the case upon which Jerry Falwell's Liberty Counsel relied upon for its argument, accepted by Judge Williams, that if the MCPS health education curriculum was to say anything about sexual orientation (there, the viewpoint of the mainstream medical and mental health professional associations), then "the other side" (there, the contrary viewpoint of Falwell, Dobson, etc., that homosexuality is a disorder and can be "cured") would have to be presented.See Citizens for a Responsible Curriculum v. MCPS, 2005 WL 1075634 (D. Md. 2005) at p. 12.
The Fourth Circuit's statement in Child Evangelism Fellowship (CEF) makes it crystal clear to all judges within the Fourth Circuit (including Judge Williams, should a later MCPS curriculum case reach him) that no First Amendment doctrine requires MCPS, in order to add to its health education curriculum the wisdom of the mainstream health associations, to also include "dissenting views" of the Falwell/Dobson-related groups. Statements essentially identical to that of the Fourth Circuit have been made by the Fifth and Ninth Circuits, in decisions written by appointees of President Reagan. See Chirac v. Miller, 432 F.3d 606, 612-12 (5th Cir. 2005); Downs v. Los Angeles Unified School District, 228 F.3d 1003, 1008, 1012-16 (9th Cir. 2000). Indeed, since the Falwell/Dobson viewpoints are theology, not science, their inclusion in the health curriculum would violate the First Amendment's Establishment of Religion clause, as the federal court noted last year in the Dover, Pennsylvania, case involving "intelligent design." Kitzmiller v. Dover Area School District, 400 F.Supp.2d 707, 765-66 (M.D. Pa. 2005).
The "viewpoint discrimination" holding by Judge Williams was directly contrary to Rosenberger, and that is why the settlement agreement ending the lawsuit included that statement that MCPS retained the right to decide what would be in the curriculum. Now that the Fourth Circuit (of which Maryland is a part) has confirmed that curriculum in public schools is not within the "public forum" arena, as to which "all sides" of an issue must be given a platform, any attempt on the part of Liberty Counsel or anyone else to derail the upcoming curriculum revisions on a "viewpoint discrimination" ground not only will fail (that was clear even prior to CEF), but might even subject counsel raising it to sanctions for the filing of a frivolous lawsuit.
The CEF case itself involves whether the standards MCPS uses for deciding what flyers will be sent home in students' backpacks were specific enough to pass constitutional muster, or whether they left MCPS personnel with "unbridled discretion" that could lead to unconstitutional viewpoint discrimination. The Court found that the MCPS standards were inadequate, and sent the case back to the lower court for further proceedings. That complex case addresses the nature of the limited public forum created by the school system's policy of permitting notices to be send home with students. In such a situation, the Court explained, the government may impose restrictions, but such restrictions "must be both reasonable and viewpoint neutral." 2006 WL 2294272 * 5, Slip op. at 10. This is a knotty problem involving the limited public forum which could be deemed as being created by the backpack flyer system. What is significant for the issues surrounding the MCPS health education curriculum is the Court's explicitdistinction between public forums created by public educational institutions -- which may not discriminate based on viewpoint -- and educational content in the classrooms. As noted above, the Fourth Circuit, in setting forth the framework for its analysis, explicitly recognized the distinction between, on the one hand, situations in which the government (including a school system) has created a public forum subject to First Amendment viewpoint neutrality and, on the other hand, "the content of education," which does not require such neutrality So whatever problems the CEFruling presents to MCPS regarding its backpack flyer policy, the decision reiterates the rule of law that demonstrates that Judge Williams' "viewpoint discrimination" ruling in May 2005 was simply incorrect and, if ever asserted again, would be summarily reversed on appeal.
David S. Fishback
posted by Christine at 10:25 AM
23 Comments:
Is this the leagl argument you plan on using?
It's obviously not his area of expertise.
Anon, we are not planning on using any leagl arguments at all. Nobody has sued us, and we aren't planning so sue anybody ... why would we need leagl arguments?
JimK
And how, Anonymous, would you assess the Fourth Circuit's statement?
My point, of course, is that MCPS would be on absolutely firm, unassailable legal ground if it decides to implement health education revisions that provide basic information on sexual orientation without presenting the "other side" propounded by Dobson, PFOX, et al.
Did anyone catch this?
http://www.gazette.net/stories
/071206/montope170447_31968.shtml
I am shocked...I tell you shocked that this was not posted.
Facts anyone? Nah, don't bother me with facts...my mind is made up.
It is about the ideology stupid...to recycle an old "clitonism".
Michelle Turner, Silver Spring
The writer is president of Citizens for a Responsible Curriculum.
David Fishback (‘‘AMA clearly opposes conversion therapy,” July 5, Open Forum) is not exactly correct when he suggests the American Medical Association opposes the use of ‘‘reparative” or ‘‘conversion” therapy. What the AMA actually says is that AMA ‘‘opposes the use of ‘reparative’ or ‘conversion’ therapy that is based upon the assumption that homosexuality per se is a mental disorder or based upon the a priori assumption that the patient should change his⁄her homosexual orientation.”
As Mr. Fishback says, ‘‘nothing could be clearer.” However, the AMA statement only addresses situations where the therapy is based on (1) an (incorrect) assumption of mental illness (2) someone’s assumption that a patient should change their sexual orientation, i.e. that ‘‘change” is necessary or desirable.
The AMA statement simply does not address the usual and typical situation where the individual, of his own volition, without coercion or consideration of ‘‘illness,” desires to change his⁄her sexual orientation and seeks the help of therapy. Reparative⁄conversion therapy is not intended for the unwilling or uninformed, nor does it require anyone except the individual to decide if such change is what he or she should do.
Mr. Fishback incorrectly implies the AMA broadly condemns reparative⁄conversion therapy, even when sought by the individual himself based on his own feelings and wishes. Mr. Fishback is wrong.
Mr. Fishback is also wrong when he suggests that, based on the AMA and American Academy of Pediatrics statements, these organizations ‘‘opposes as ‘harmful’ any therapies that seek to change a person’s sexual orientation.” Harm is not discussed in either document.
Mr. Fishback is also incorrect when he characterizes the current position of the American Academy of Pediatrics as opposing therapies attempting to change sexual orientation. Mr. Fishback relies on an outdated 1993 AAP policy statement. Fast forward to the 2004 AAP statement that no longer includes the conclusion, ‘‘it (therapy to change orientation) can provoke guilt and anxiety” that Mr. Fishback relies on. (http:⁄⁄aappolicy.aappublications.org⁄cgi⁄content⁄full⁄pediatrics;113⁄6⁄1827). As noted in the 2004 statement: ‘‘This policy is a revision of the policy posted on October 1, 1993.” Conversion therapy or harm from this therapy is not even discussed. The new statement does say, however, ‘‘The guidance in this report does not indicate an exclusive course of treatment or serve as a standard of medical care.”
Check it out for yourself.
Orin,
Below I have pasted the Gazette letter to which Michelle was responding. Anyone interested can view the links and see who is telling the truth and who is just taking random quote and spinning.
I would only note, further, that bottom line is that the conversion therapy approaches that Michelle says are just an option for those who voluntarily wish to become heterosexual are ALL based on the premises that the AMA condemns as bases for "therapy." All one need do is to look at the websites of NARTH and Focus on the Family to see that.
David
Here is my letter:
Michelle Turner agrees with my statement that both the American Medical Association and the American Academy of Pediatrics ‘‘state that homosexuality is not a mental disorder,” but then accuses me of ‘‘spinning” the facts when I wrote that that those organizations oppose as harmful ‘‘therapies” that seek to change a person’s sexual orientation. (‘‘Spinning the truth,” June 28 Open Forum). She is simply wrong, but people can see for themselves by reading the statements from the AMA and AAP Web sites.
The AMA explicitly states that it ‘‘opposes the use of ‘reparative’ or ‘conversion’ therapy that is based upon the assumption that homosexuality per se is a mental disorder or based upon the a priori assumption that the patient should change his her homosexual orientation” (AMA Policy Number H-160.991). This policy may be found on the AMA’s Web site at http: www.ama-assn.org⁄ama⁄pub⁄category⁄14754.html. Nothing could be clearer than that statement.
Similarly, the American Academy of Pediatrics (AAP) in its policy statement on ‘‘Homosexuality and Adolescence” states: ‘‘Confusion about sexual orientation is not unusual during adolescence. Counseling may be helpful for young people who are uncertain about their sexual orientation or for those who are uncertain about how to express their sexuality and might profit from an attempt at clarification through a counseling or psychotherapeutic initiative. Therapy directed specifically at changing sexual orientation is contraindicated, since it can provoke guilt and anxiety while having little or no potential for achieving changes in orientation.” (Policy Statement: Homosexuality and Adolescence, American Academy of Pediatrics, 1993). This statement may be found at http:⁄⁄aappolicy.aappublications.org⁄cgi⁄reprint⁄pediatrics;92⁄4⁄631.pdf
Moreover, it is noteworthy that in the clinical report cited by Ms. Turner, ‘‘Sexual Orientation and Adolescents,” the AAP specifically recommends that, ‘‘[w]ith regard to parents of nonheterosexual adolescents, pediatricians are encouraged to [among other things] be supportive of parents of adolescents who have discovered that they are not heterosexual. Most states have chapters of Parents and Friends of Lesbians and Gays (PFLAG) to which interested families may be referred” (See http:⁄⁄pediatrics.aappublications.org⁄cgi⁄content⁄full⁄113⁄6⁄1827). The AAP does not recommend referring families to PFOX or other ‘‘conversion therapy” groups.
But don’t take my word for it. Just read the AMA and AAP statements.
David S. Fishback, Olney
The writer is former chairman of the Montgomery County Board of Education’s Citizens Advisory Committee on Family Life and Human Development.
http://www.gazette.net/stories/070606/carrlet184514_31942.shtml
"Reparative⁄conversion therapy is not intended for the unwilling or uninformed, nor does it require anyone except the individual to decide if such change is what he or she should do."
Zack Stark used his blog to tell the world that he was being forced by his parents to attend conversion therapy. Like many teens in evangelical families, Zack was not allowed to decide for himself "if such change is what he or she should do."
Before any conversion type treatment is administered to a person, particularly a teenager, it should be determined if that person chooses to try to convert or is being coerced to try. Even Warren Throckmorton points out this problem.
"Throckmorton emphasized that while a parent might compel a teen to attend church, a professional counselor is bound to obtain informed consent from a client and should not treat a minor solely because his parents are upset about his sexual orientation."
http://www.washblade.com/2005/7-1/news/national/tenopen.cfm
Anon,
That someone might truly volunteer for such therapy is not the AMA's point. The AMA says that it opposes any therapy based on the assumption that the client/patient should change their orientation. Why? Because the AMA, and the rest of the mainstream medical groups, have concluded that such efforts are dangerous and harmful. So the proposition that the client/patient may want to change their orientation is not the key. I may want to be taller, but putting me on the rack to stretch me are dangerous (and ultimately fruitless) whether or not I may wish for the result.
Orin said I am shocked...I tell you shocked that this was not posted.
Orin, as the text of the letter should make clear, this was one of a series of letters sent to the Gazette. I reported on the series up to a point. The one you quoted came after I had blogged about it, when frankly, the whole thing had become just a contest who see who would get the last word. There was nothing substantially new in this letter compared to the others, so yes, I decided not to post it. You can read about the rest of the exchange, its history, the coincidental statements to the board of education, etc. HERE.
JimK
I would like to see the studies that the AMA used to reach this conclusion could you post them.
AMA, and the rest of the mainstream medical groups, have concluded that such efforts are dangerous and harmful
please list studies. If studies exsist.
If you want to know about something the AMA decided, ask the AMA.
Anonymous said...
If you want to know about something the AMA decided, ask the AMA.
August 14, 2006 1:58 PM
I did, they could not produce the documents
AAP said the same thing.
I thought you might have them. You know, have some facts. You would think that if you want to teach the facts you would have some facts. Or change your name to teach what we belive.
Where are the studies that say "affirming" therapy works?
"I did, they could not produce the documents
AAP said the same thing."
Well, if you asked for these studies by posting anonymous comments on their blogs, that might not be the most effective way to find what you are looking for. If you want to learn about studies in this area, you might want to try a little digging of your own. A good place to start is the encyclopedia. Two recent studies of conversion therapy are discussed here:
http://en.wikipedia.org/wiki/Reparative_therapy
"Spitzer report
In May 2001, Dr. Robert Spitzer, who was involved in the original declassification of homosexuality as a mental disorder, presented a paper on reparative therapy at the APA annual convention. He reported that 66% of the men and 44% of the women he sampled had achieved "good heterosexual functioning" through interventions.[6]. This paper was widely reported by proponents of reparative therapy as evidence of success of the therapy, and as the first step towards official acceptance and the legitimisation of reparative therapy.
The APA immediately issued an official disavowal of the paper, noting that it had not been peer reviewed and bluntly stating that "There is no published scientific evidence supporting the efficacy of reparative therapy as a treatment to change one's sexual orientation."[7]
Two years later, Spitzer published the paper in the Archives of Sexual Behavior. The publication decision sparked controversy and one sponsoring member resigned in protest. The paper has been critized on various grounds, including using non-random sampling and poor criteria for "success" [8]. Critics argue that it relied upon samples selected by reparative therapists themselves, that proper random samplings were not used, that small samplings were used, that the subjects appeared to be ex-gay advocates who may have been biased in favor of reparative therapies, that 60% of the subjects had previously reported being bisexual, and that no follow-up study had been carried out to ascertain long-term conversion.[9]
Spitzer himself played down the results of his own paper; upon being asked about the 200 patient sample after 16 months, and the percentage of people who might succeed, Spitzer said that it took almost a year and a half to only find 200 willing individuals, and therefore, the number of homosexuals who could successfully become heterosexual was likely to be "pretty low". He also conceded that the study's participants were "unusually religious."
Shidlo and Schroeder study
Another study on reparative therapy was done in 2001 by Dr. Ariel Shidlo and Dr. Michael Schroeder. Their study also relied on a participants connected with reparative therapy advocates in addition to recruitments from the Internet. Their study found that 88% of participants failed to achieve a sustained change in their sexual behaviour and 3% reported changing their orientation to heterosexual. The remainder reported either losing all sexual drive or struggling to remain celibate. Schroeder said many of the participlants who failed felt a sense of shame. Many had gone through reparative therapy programs over the course of many years. Of the 8 respondents (out of a sample of 202) who reported a change in sexual orientation, 7 were employed in paid or unpaid roles as 'ex-gay' counsellors or group leaders, something which has led many to question whether even this small 'success' rate is in fact reliable.[10]
Potential risks
Conversion therapies are frequently promoted as being helpful and safe. Reparative therapists claim they are helping those afflicted with unwanted and intrusive homosexual thoughts and point to the fact that many of their patients have expressed that they were not harmed by such procedures and, although not always having the desired effect, seemed to have some benefits.
However opponents argue that there is no evidence that reparative therapies are safe, and they may in fact be potentially dangerous. Some of the more extreme therapies that have been used (such as electro-shock therapy and aversion therapy) have long histories of being psychologically and physically harmful. However, such therapies are not commonly used by contemporary conversion therapists.
Opponents go further and claim that "softer" therapies such as the secular conversion counselling therapies may also be dangerous. They compare untested reparative therapies to other experimental therapies such as recovered memory therapy (used in unproven cases of satanic ritual abuse) and dissociative identity disorder, that have much in common with reparative therapies (i.e. they are all experimental therapies that have only been promoted by a minority of therapists and clergy) which have proven to cause emotional pain, devastate people's lives, and even result in suicide. They also claim that such therapies seek to exploit guilt and anxiety leading to further psychological problems.[11]
While no comprehensive study has been yet carried out into the long-term consequences of conversion therapies, the Schroeder and Shidlo study outlined above found that the majority of respondents reported being left in a poor mental and emotional state after the therapy, and that rates of depression, anxiety, alcohol and drug abuse and suicidal feelings were roughly doubled in those who underwent reparative therapy. Of particular concern was the lack of support given by reparative therapists and counsellors to those who found their programme to be contributing to psychological distress (see the section on ethics, below).
Ethics
Many reprarative therapists have come into conflict with the ethical guidelines laid down by the American Psychiatric Association and American Psychological Association, and indeed many have resigned from those associations, often alleging political bias.[citation needed]
While professional ethical guidelines do not explicitly forbid reparative therapy, there are a number of potential clashes, as reported in another paper by Schroeder and Shidlo (see above) in particular on four particular issues: first, patients should not be pressured into therapy (many reparative therapists and those who approach them have strong religious views, and pressure is often placed on counsellees from that standpoint). Secondly, the therapist should not provide misleading information about the 'success rates' of any treatment (the 'success rates' claimed by groups such as Exodus International and Narth are not substantiated by outside studies). Thirdly, the therapist should be prepared to provide alternative courses of treatment to those who were not progressing, or to refer them to counsellors or therapists offering alternative treatments. This often did not happen. Fourthly, the counsellor/therapist would be expected to refrain from direct criticism of the relevant professional associations."
The Wikipedia entry provides some useful summary of the disagreements on conversion or reparative therapy.
However, as has been quoted repeatedly on this space, professional standards as propounded by the AMA, for example, DO bar therapies "based upon the assumption that homosexuality per se is a mental disorder or based upon the a priori assumption that the patient should change his⁄her homosexual orientation.”
So I do not think the Wikipedia statement that "professional ethical guidelines do not explicitly forbid reparative therapy" is correct, since such therapies are all "based upon the a priori assumption that the patient should change his⁄her homosexual orientation.”
Yes and this is all so facinating but where is the papers that the AMA relied on for this bit of BS? "for example, DO bar therapies "based upon the assumption that homosexuality per se is a mental disorder or based upon the a priori assumption that the patient should change his⁄her homosexual orientation.”
what is the proof that homosexualy is not a mental disorder got any thing on that.
Anon, you keep saying the same thing, like you expect all the research to be on the Internet or on the Discovery Channel or something. Wherever you live, there is a university nearby. Why don't you go ahead and take the GRE, sign up for a graduate program, go to the seminars, attend the colloquia, help your professors with the research, and study the literature systematically, like the people who issued these opinions have done?
It's not going to turn up on TV, all explained for you.
JimK
jim why don't you put up or shut up. if these studies exsisted they would be in the New York times.
Re Anon's posting from last night:
For anyone who wants to see some of the basics, go to the Resources page of the Teachthefacts.org website and click on the link on the left hand side entitled "Our Septebmer 2005 Forum." There, you will find a lot of information, including the slides from the presentation of Dr. Paul Wertsch, the AMA's chief spokesperson on GLBT mattters, and the policy positions of the AMA and other mainstream medical and mental health professional associations.
Anon, I'm not joking. These debates are not conducted in the public arena by people untrained in the field. You go get your doctorate, collect some data, debate these issues with the leaders in the field, win their respect, and you can be part of the debate. That's how it's done.
The Discovery Channel won't have it, sorry. The reason the AMA's opinion counts more than yours is that they know more than you.
JimK
They will be challenged in the public arena and they are required to not only produce the studies. They will be required to produce the data and all work products. It is called a subpoena it’s a legal term.
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