Paperstorm in Sex-Ed Appeal

We recently got a look at some legal papers filed by the Citizens for a Responsible Curriculum, trying to get more of a response from the Montgomery County Public Schools and the state school board. I'm no lawyer and will probably get some of this wrong, but let me fill you in.

The set-up is this. The CRC asked the State Superintendent of Schools to stop the pilot testing of new 8th and 10th grade health curricula. She didn't. Then they appealed to the State Board of Education to stop the implementation of the new health curricula in the fall. They are pondering that request now; I think we expect a decision from them in July or so. And now the CRC are crying because everybody's not playing the game by their rules.

The first CRC document is to the Assistant Attorneys General of the state of Maryland and the state school board.

... this is to respectfully request that the State instruct the MCPS BOE to transmit the record in this case and for an extension of time to file a response to the motion for summary affirmance filed on March 6, 2007 by the Montgomery County Board of Education ("MCSP BOE") in accordance with COMAR 13A.01.05.04(B)(1).

Well, the point is that the county had twenty days to give the state "the entire record of the controversy," meaning, I guess, all the materials relevant to the case. Twenty days was February 27th, they say, and the CRC is saying that the school district still hasn't given them a copy of the condom video DVD.

In addition to failing to transmit the condom DVD, the Appellee has failed to transmit other significant parts of the record. For example, although certain information was provided on the alternative classes offered to pilot test students who chose to opt-out of the Additional Lessons, there has been no specific information transmitted concerning the alternative classes to be offered once the curriculum is adopted county wide or how long students will be forced to sit in the library out of their normal class...

Then there's a list of stuff they want from the county school district:

• the condom DVD to the State Board with a copy to the Appellant,
  
• full and adequate information concerning the alternative lessons, the number of weeks the students will be taking such alternative lessons and how these lessons will be administered,
  
• the record supporting the County's assertion that the curriculum was adequately reviewed by health officials and the CAC, specifically that portion of the eight [sic] grade lesson which states that homosexuality is innate which was added on January 9th,
  
• the record supporting the County's assertion that the curriculum was adequately reviewed, specifically the Health Department official who reviewed the HIV portion of the Additional Lessons as required by COMAR Section [sic], and
  
• the expert support for its contention that homosexuality is "innate",
  
• that part of the existing curriculum which supports Appellee's contention that the students are informed that condoms are not reliable for use in anal intercourse

I doubt they'll get far trying to prove that one line of the course, which was already approved for tenth grade and added to eighth grade for consistency, was thoroughly reviewed by health officials or the CAC, or needed to be.

Also, if the "Additional Lessons" are the new stuff -- there's no "HIV portion."

And ... I'm trying not to go through this, but some of these things, you just gotta say, they contradict themselves when they try to say the schools should teach that "condoms are not reliable for use in anal intercourse." The fact is, and the point they usually make is, that there is no evidence one way or the other -- the required research would be unethical and too dangerous to conduct. It's one thing to say, "there's no research indicating that condoms are safe for anal intercourse," which is true but meaningless -- I mean, there's no research evidence that they make great balloons, either, but they do -- and it is another thing to imply that there is evidence that "condoms are not reliable for use in anal intercourse." But nice try. OK, back to the papers.

There's a little more, then the bottom line -- what this is really about:

... we request an extension of time to respond through and including April 5th. We reserve the right to request an additional extension in the event the MCPS BOE fails to transmit the record.

Finally, they want to meet to set the agenda for a trial, etc.

OK, that's what this is all about. They want more time, and of course need to blame everybody else for making them late.

The school district filed its response to that document, and it seems pretty clear: they don't need to provide materials.

The adoption of a curriculum by a county board of education is a legislative or quasi-legislative act, not a contested case involving individual rights. ... [ellipses indicate omitted legal references] As such there is no discrete "record" as there would be in a quasi-judicial matter. Appellants submitted extensive exhibits with their appeal. The exhibits, presumably, were all of the materials that were germane to and in support of their appeal. The County Board included exhibits in its submissions only for convenience or because exhibits submitted by Appellants were incomplete.

A copy of the so-called "condom DVD" was not included because there is no dispute about what is actually in the video. Rather, Appellants' objection to the video is based on the fact that it does not contain additional information about transmission of disease that Appellants believe should have been included in the video instead of later in the curriculum as part of the lessons on infectious diseases. ... There is no factual dispute about what the video says and, therefore, it was not necessary to include a copy of it. Nevertheless, a copy of the transcript is enclosed with this response for your information and that of the State Board.

And it is, right at the end.

But wait. There's more:

The alternative lessons for those students who did not opt to participate in the field test of the Revised Lessons are not part of the record because the County Board took no action on them, nor were they a part of the Appeal filed on February 7, 2007. The County Board is not required to and does not take action to adopt individual lessons for every class in every course for which it adopts a curriculum. Because there had been prior litigation and because the Revised Lessons constituted a significant change in the existing health curriculum, the Superintendent chose to provide the County Board and the public with particularly detailed lessons plans so everyone would know exactly what the curricular change encompassed. The County Board, however, took no action on the alternative lessons. Moreover, the content of the additional lessons, their number, and "how these lessons will be administered" were raised by Appellants only in relation to Request for Stay and, more particularly, in their Reply in Support of Stay, not as part of their appeal. At the State Superintendent's request, information about the additional lessons, supported by an affidavit, was submitted in the County Board of Education's Surreply in Opposition to Request for Stay.

Appellants raised a number of purely legal issues in their Appeal and Request for Stay. There are no disputes of material fact: the lessons reflecting the curricular changes say what they say. The State Board has been provided copies of the instruxctional delivery plan for each lesson, the materials to be provided to the students for each lesson, the materials to be used by the teacher for each lesson, and the overheads to be used by the teacher for each lesson. The content of DVD demonstrating proper use of a condom is not disputer. The DVD says what it says and does not say what it does not say. There are no new materials...

... and so on. Pretty good.

They wind it up by putting their foot down:

There is no need for and no basis for an extension to reply to the County Board's Motion for Summary Affirmance other than to delay the State Board's decision in this matter. Therefore, the County Board opposes any extension of time to respond to the County Board's Motion for Summary Affirmance.

There are no dates on these documents, so I don't know exactly when they were filed, or what state the decision is in about whether to grant an extension to the CRC. I'll tell you when I know.

The CRC submitted another one to the state. Interestingly, they really really don't want the Maryland State Attorney General's office involved in this. They want the State school board to decide whether to overrule the county and throw out the new curricula.

They criticize the county's response to their initial complaint, saying it was "far more rhetoric than substance." And then -- now this will come in handy -- they list all the stuff they were whining about in the first place, which the County (according to CRC) did not address in their response to the state. You want to see a list of all the stuff the CRC is complaining about? Check this out:

• There is no defense of mention of the county's controversial teaching that homosexuality is "innate." Notwithstanding the fact that every court that has addressed the issue has found precisely the opposite.
  
• There is no defense or mention of the county's failure to place Focus Three Subject Matter in an Optional Course.
  
• There is no defense or mention of the county's failure to divulge to students that condoms are not reliable protection against HIV/AIDS in anal intercourse.
  
• There is no defense or mention of the condom video and lesson's misleading impression that condoms are reliable barriers to disease in all types of intercourse (i.e. anal intercourse). Nor the false implication that vaginal and anal intercourse of [sic] equal health risks.
  
• There is no defense or mention of the age appropriateness of the Approved Lessons.
  
• There is no defense or mention of the biased vignettes which portray exclusively non-heterosexuals.
  
• There is no defense or mention of the fact that the only counselors mentioned to students are GLSEN, a gay advocacy group.
  
• There is no defense or mention of the problematic definitions of "homophobe" and "prejudice" which by their definition stigmatize people holding traditional religious convictions.
  
• There is no defense or mention of the treatment of the transgender Portia in the vignette as a "she" instead of a "he" despite the fact that the law and society classify him [sic] as a he.
  
• There is no defense of the treatment of transgenderism as a sexual variation instead of a mental disorder.
  
• There is no defense or mention that the curriculum fails to inform students that transgenders are no longer being given sex change operations and hormone therapy at respected medical hospitals in light of the current view that such does not treat the underlying mental disorder.
  
• There is no defense or mention of the fact that the curriculum encourages students to "come out," despite the documented risks to youth of coming out, and despite the fact that this is clearly promoting and encouraging sexual activity.
  
• There is no defense or mention of the move away from teaching abstinence in this curriculum.
  
• There is no defense or mention of the fact that heterosexuality is barely mentioned and marriage is never mentioned.
  
• There is no defense or mention of the fact that homosexuality is treated as a norm and as normal behavior despite evidence to the contrary showing it to be present in only a small percentage of the population.
  
• There is no defense or mention of the local board's refusal to pay any heed to the testimony of disease specialist Dr. Ruth Jacobs or to the petition signed by the numerous (now 270) area medical doctors urging the local board to warn students that condoms are not reliable in preventing disease in anal intercourse and that anal intercourse is simply too risky to practice.
  
• Furthermore, left unmentioned in the Appeal but highly significant to parents, the MCPS direction to teachers to direct student questions to "A Responsible Adult." MCPS defines a responsible adult as someone over age 18 who the student trusts. No mention of parents is suggested or even considered. Are not parents responsible adults for student questions regarding sex?

Additionally, even to topics given some coverage in the Appellee's brief, the arguments are simply not meritorious:

• Appellee fails to recognize that Appellant has shown to any degree that the curriculum advocates homosexuality as a "natural and morally correct lifestyle" and states that Appellant "do not and cannot cite to any part of any lesson to support this assertion" ... MCPS expects the State Board to accept this bald assertion simply because it says so. Appellee, in taking this position, simply refuses to make any attempt to refute the many examples of bias and exclusive moral viewpoint shown by Appellant. Ex-gays are marginalized throughout the brief in every instance they are mentioned and the Appellee goes so far as to argue that Appellant has failed to come forth with an ex-gay student or a student struggling to overcome same-sex attractions ... Appellees have not come forth with a transgender, intersexed or bisexual student, yet transgenders, bisexuals and the intersexed are included in the Curriculum.
  
• Appellee erroneously contends that students will be warned of the dangers of anal intercourse in a separate, later part of the curriculum ... No evidence of this is submitted for the simple reason that it is not true: the curriculum framework nowhere else provides that the students are to be taught the dangers of anal intercourse. Additionally, even if this were true, it would not obviate the confusion caused by the condom lesson and video on this point but only increase such confusion. Children's lives are at stake here: there is no room for confusion here or a total failure to warn here. MCPS' students' health must be the primary concern of any health class.
  
• Appellee fails to adequately address the egregious fact that students who do not opt-in to the Additional Lessons are constrained to sitting in the library by themselves, conspicuously, with no teacher, with no class, for SIX WEEKS; while Appellee disingenuously argues that there is no "disparate treatment." ...
  
• Appellee blithely states that there is no opt-out, there is simply an opt-in ... Appellee refuses to address that students who do not "opt-in" to their regularly scheduled MANDATORY class are constrained to the library for SIX WEEKS of INDEPENDENT STUDY. Appellee fails to adequately address the egregious fact that parents who seek to protect their children's religious beliefs and the family values, have no recourse but to convice their children to sit in the library for six weeks while still having to sign in every day in front of their peers with their teacher. That during that six week period, they have no teacher, no class and are fully isolated ... Clearly, Appellee's assertion that there is no "opt-out" ... is patently false.
  
• Appellees further assertion that this opt-out does not compel students to reveal their moral, ideological, or religious views simply because, according to Appellee, there is no opt-out ..., is also false and represents callous disregard for the parents and students who hold traditional values. Furthermore the Appellee criticizes as "incendiary" Appellants statement that: students "are being molested on account of their religious beliefs by being forced with the NO CHOICE of either leaving the class and sitting in a library doing independent work ... or having to listen to negative stereotyping and epithets (homophobe and prejudiced) being directed at them as members of a group holding a moral view antithetical to the viewpoint espoused by MCPS." ... MCPS asserts without any proof that it is not intolerant toward students and parents with certain religious beliefs. Its only proof of not being intolerant and judgmental toward certain religions is its own prideful statement that its [sic] not. The fact that thousands of students and parents object to the intolerance is proof that indeed MCPS is a religiously bigoted government entity. Appellants will provide the board with numerous examples of religious bigotry including all the lawsuits MCPS has already lost trying to discriminate against certain religious sects. MCPS completely ignores the free exercise clause of both the Maryland and federal constitution. Putting a muzzle on the religious views of students is a violation of the worst kind and is the pinnacle of intolerance.
  
• The many cases cited by Appellee are without exception outside of Maryland and largely outside the Fourth Circuit

Finally, we note that Appellee argues that an Appellants complaint "really boils down to a complaint that community values do not perfectly coincide with their opinions." ... Here we see a truly callous disregard for the religious convictions of many families in Montgomery County: according to Appellees, religious convictions are mere "opinion." [omitting chatter]

Additionally, MCPS has failed to prove, or even attempt to prove, its' [sic] assertion that the Additional Lessons represent "community values." Which it surely does not... [text omitted]

In closing, we note that there are legal Prohibitions against use of federal funds obtained Under [sic] the NO CHILD LEFT BEHIND(Act of 2001) ... [text omitted]

Ow. I've got writer's cramp, or whatever you call it when you're pounding on a computer keyboard.

At the end there, they seem to be saying that talking about the pros and cons of coming-out amounts to a violation of NCLB, because coming-out, to the CRC, is identical with having sex. And you can't "promote or encourage sexual activity" in a class funded by NCLB. That is a very weak argument, like the rest of these, but the point is not to make a good case, the point is to waste time.

Well, that was a list of the things, mostly imaginary, that the CRC believes everybody else should take seriously. Normally, I'd go through this item by item, but ... c'mon, this is ridiculous.

Oh, and this is cute. The last page of this document is signed by the mother of a third-grader from Sequoyah Elementary School in Derwood, who swears that "As a practicing member of the Catholic Church, I believe that homosexual acts are immoral" and other statements. I guess the CRC found a real MCPS family that could claim to be victimized by this curriculum, since none of them will be.