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JUDGE TENTATIVELY DENIES LESSON 9 OPT OUT REQUEST

Submitted by on 1, November 30, 2009 – 12:40 pm2 Comments

An Alameda County Superior Court judge has tentatively denied a request by some local parents to require the school district to allow their children to opt out of lessons designed to halt anti-gay bullying.

Judge Frank Roesch issued a temporary ruling on November 25 saying the lessons don’t constitute health education, as the parents are arguing. The state legislature has written rules that allow parents to opt their children out of health-related lessons, they argued.

Judge Roesch also said that an opt-out would conflict with portions of the state education code that call on school districts to provide equal opportunities to students regardless of sexual orientation, race or ethnicity, nationality, disability, gender or religion. Much of the district’s current work around revising the curriculum is focused on broadening the lessons to better reflect that portion of the education code.

The judge tentatively denied a district request to put off his decision in the face of pending school board approval of a new curriculum that would include specific anti-bullying lessons for several groups. The board could okay new lessons and a plan to move forward with a reading list that more explicitly addresses bullying on specific bases on December 8.

A hearing on the parents’ request is set for Tuesday. The full text of the tentative ruling, which is on the court’s website, is below.

More to come.

TR – Petition for Alternative Writ of Mandate – Denied

This Tentative Ruling is issued by Judge Frank Roesch The motion by Petitioners Aeisha Balde, et al. (collectively “Petitioners”) for issuance of an alternative writ of mandamus directing Respondents, Alameda Unified School District and Kirsten Vital, Superintendent, in her official capacity (collectively “District”) to allow the Petitioners to have their children excused from a portion of “health instruction” entitled Safe School Curriculum–Lesson 9, also known as the Caring School Community supplement, Lesson 9 for the 2009-2010 school year, as well as subsequent school years as per Education Code section 51240 or to show cause before this Court they have not done so and why a peremptory writ should not issue is DENIED. Initially, the Court construes the motion as a motion for issuance of a peremptory writ, rather than an alternative writ. Both Petitioners and District appear to be seeking a ruling on the merits at this time, the matter has been fully briefed, and the Court’s interest in efficient resolution of disputes coupled with the interests of the parties in prompt resolution of the ongoing dispute all favor a ruling on the merits of the case. See Code of Civil Procedure section 1088, 1105; Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1240. Petitioners allege in their verified First Amended Petition that they are parents of children enrolled in a school within the jurisdiction of the Alameda Unified School District during the 2009-2010 school year. The Court finds that Petitioners have standing to bring this action. Assuming, as District contends, that several Petitioners lack standing, there is no showing none of the Petitioners have standing. On May 26, 2009, the District adopted the Safe School Community Curriculum–Lesson 9, also known as the Caring School Community supplement, Lesson 9 (hereafter “Lesson 9”) for the 2009-2010 school year. The purpose of the curriculum is to teach safety and tolerance on school campuses in accordance with the Student Safety and Violence Prevention Act of 2000, and to prevent bullying and harassment pursuant to District policies, Education Code section 200, and Penal Code section 422.6(a). Petitioners have given written notice, by letters dated June 13, 2009, of their desire for their children to opt out of instruction under Lesson 9. Petitioners argue that Lesson 9 constitutes instruction in health education. Petitioners rely on Education Code section 51240, which provides that if any part of a school’s instruction in health conflicts with the religious training and beliefs of a parent or guardian of a pupil, the pupil, upon written request of the parent or guardian, shall be excused from the part of the instruction that conflicts with the religious training or beliefs. Petitioners all assert that Lesson 9 constitutes instruction in health that conflicts with their religious training and beliefs and personal moral convictions. There is no dispute, and the Court agrees, that when section 51240 is applicable, a school district has a mandatory duty to allow parents to have their children excused from health instruction. District has given notice that Petitioners’ demand to opt out of instruction pursuant to Lesson 9 is denied, because District’s Board did not include an opt out option when it approved Lesson 9. Petitioners reason that Lesson 9 clearly constitutes instruction in health, within the opt out clause in Education Code section 51240, because the Lesson 9 curriculum for kindergarten through Grade 5 is within the parameters of health instruction in California Public Schools. Petitioners contend that those parameters have been established by the Health Education Content Standards for California Public Schools, Kindergarten Through Grade Twelve (hereafter “Health Ed Content Standards”), adopted by the California State Department of Education. Petitioners contend that the Health Ed Content Standards were adopted pursuant to Education Code section 51210.8, which requires the State Board of Education to adopt standards for the instruction of health education in California Public Schools. Petitioners point to language in the Health Ed Content Standards for kindergarten through fifth grade and argue that it is similar in nature to language in the curriculum for Lesson 9 applicable to kindergarten through fifth grade, respectively. District contends that Lesson 9 was adopted pursuant to the policy of the State of California, as expressed in Education Code section 200, et seq., to provide all students, regardless of actual or perceived sexual orientation or gender identity, equal rights and opportunities in public schools. District also points to District Board Policy 5143.3 Nondiscrimination/Harassment. Petitioners concede in their First Amended Verified Petition that the purported purpose of the Lesson 9 curriculum is to teach safety and tolerance on school campuses in accordance with the Student Safety and Violence Prevention Act of 2000, and to prevent bullying and harassment pursuant to District Board Policies, Education Code section 200, and Penal Code section 422.6(a). District contends that the Legislature did not intend, when it enacted Education Code section 51240 in 2004, to include matters such as Lesson 9 within the phrase “a school’s instruction in health,” in order to allow parents to exercise opt out rights with regard to such curriculum. The Court finds that the Health Ed Content Standards are not intended to define the parameters of the phrase “a school’s instruction in health” in connection with the opt out provision in Education Code section 51240. First, nothing in Education Code section 51210.8 explicitly states that the content standards in the curriculum area of health education will define the opt out rights of parents under section 51240. Second, prior to 2003, section 51240 allowed parents to opt out of instruction in “health, family life education, and sexual education?.” Thereafter, section 51240 was repealed, but an opt out provision for “sexual education” was included in Education Code section 51938. When section 51240 was re-enacted in 2004, it included an opt out provision only for “health” education. The Health Ed Content Standards were not enacted until 2008. In addition, at the time section 51240 was re-enacted, Education Code section 51202 provided for instruction at the appropriate elementary and secondary grade levels and subject areas in “personal and public safety and accident prevention,” but did not include within its description of such instruction any mention of family health education. The Court concludes that the opt out provision in section 51240 in not reasonably construed to include instruction in family life education, but was intended to be more limited in scope, and that the Legislature did not intend when it re-enacted section 51240 to define the scope of health education by reference to the Health Ed Content Standards that were contemplated for adoption in the future. The Court also finds that the opt out provision in Education Code section 51240 is not applicable even if the Health Ed Content Standards define the scope of the phrase “instruction in health.” Petitioners’ contention that Lesson 9 constitutes instruction in health creates a conflict between the policies underlying section 51240 and the policies that support Education Code section 200 et seq., including section 233, which specifically contemplate adoption of policies, guidelines, and curriculum designed to discourage discriminatory practices and attitudes and acts of hate violence in public schools. Those statutes do not include opt out rights, and the Court finds that the inclusion of an opt out right would weaken the implementation of those policies by school districts. The Court finds that measures designed to prevent or discourage discrimination and harassment based on a protected characteristic, and consistent with anti-discrimination/harassment policies created by state law, are entitled to substantial deference. The Court will not require a school district to enact procedures that weaken anti-discrimination and anti-harassment measures absent a compelling showing of legislative intent to require school districts to do so. Finally, the Court must attempt, if possible, to harmonize the policies underlying these statutes, if possible, in a manner that does the least damage to the letter and spirit of each. The Court finds that on the evidence presented here, Lesson 9 should not be construed as instruction in health, so as to trigger the opt out rights of Petitioners, because its primary thrust is to provide instruction to prevent discrimination and harassment of students based on the perceived or actual sexual orientation of the students or their families. To the extent that Lesson 9 includes instruction that might be characterized as health instruction, that crossover is essentially unavoidable and incidental, since instruction designed to foster tolerance of lesbian, gay, bisexual and transgender (“LGBT”) families must necessarily include discussion of issues relating to families. This is apparent from a comparison of the Lesson 9 curriculum for each grade from kindergarten to fifth grade, and the sections of the Health Ed Content Standards applicable to each grade level that are referenced by Petitioners. With regard to the kindergarten portion of Lesson 9 curriculum, Petitioners do not show or even argue that any portion of the curriculum is within the Health Ed Content Standards for kindergarten. The Health Ed Content Standards for first grade include: “Describe how members of a family have various roles, responsibilities, and individual needs.” Petitioners contend that this is encompassed within the Lesson 9 curriculum for first grade, which has, as its purpose, to identify what makes a family, to identify and describe a variety of families, and to understand that families have some similarities and differences. The purpose, focus, and content of Lesson 9 for first grade is clearly distinct from the Health Ed Content Standards for first grade, and is focused on understanding and identifying the differences between families, rather than the various roles, responsibilities and needs of individual members. The policies supporting anti-discrimination and anti-harassment instruction outweigh any opt out rights under Education Code section 51240 with regard to the Lesson 9 curriculum for first grade. The Health Ed Content Standards for Grade Two include discussing how to show respect for similarities and differences between and among individuals and groups. The purpose of the Lesson 9 curriculum for second grade is to be able to identify alternative types of family structures and to understand that all families have similarities in that they love and care for their young. The purpose and content of the Lesson 9 curriculum for second grade concerns identification, understanding, and tolerance of alternative family structures. This is distinct from the purpose of Health Ed Content Standards for Grade Two and the similarities in subject matter are unavoidable. Based on the distinct purpose and content of the Lesson 9 curriculum, the Court finds that the policies supporting anti-discrimination and anti-harassment instruction outweigh any opt out rights under Education Code section 51240 with regard to the Lesson 9 curriculum for second grade. The Health Ed Content Standards for third grade include “Demonstrate the ability to support and respect people with differences.” The Lesson 9 materials for third grade have an almost entirely different content and focus, and are designed to educate students about family diversity and to create sensitivity to gay and lesbian family structures. The Court concludes that any opt out right with regard to the Lesson 9 curriculum for third grade is outweighed by the policies against discrimination and harassment of students from LGBT families. The Health Ed Content Standards for fourth grade include “Examine the effects of bullying and harassment on others.” The Lesson 9 materials are focused on preventing bullying and harassment based on LGBT family structure. To the extent that there is some incidental overlap with the Health Ed Content Standards for fourth grade, the State policies against discrimination and harassment of students based on the structure of their families outweigh any opt out rights that might otherwise be available under Education Code section 51240. The Health Ed Content Standards for fifth grade include “Recognize that there are individual differences in growth and development, physical appearance, and gender roles.” The Lesson 9 curriculum is focused on understanding and discouraging stereotypes about LGBT people. Any overlap between Lesson 9 and the Health Ed Content Standards for fifth grade is incidental, at best. The state policies in favor of equal rights and opportunities in education institutions of the state, and against discrimination and harassment of persons based on sexual orientation, outweigh any opt out rights that might otherwise be available under Education Code section 51240. Thus, contrary to Petitioners’ assertions, the Lesson 9 curriculum does not closely track the Health Ed Content Standards on a grade-by-grade basis. The Lesson 9 curriculum has a distinct and focused purpose tied to preventing discrimination against young students based on the LGBT structures of their families, and any overlap with the Health Ed Content Standards is not significant and does not support Petitioners’ claimed right to opt out of instruction for their children in the Lesson 9 curriculum. Finally, the Court agrees with District that Petitioners’ position would expand the scope of the opt out right under Education Code section 51240 to include any anti-discrimination or anti-harassment instruction that deals with families or tolerance of persons with differences. The result would be that parents who object to instruction in tolerance of individuals or families of other races or of mixed races, of persons with disabilities, or of persons or families of other races, ethnicity, or religion, would have the right to have their children excused from instruction on those topics. This result could not have been contemplated by the Legislature, since it substantially hinders the ability of schools to implement California’s policy under Education Code section 233 to provide equal rights and opportunities in public schools to all persons, regardless of sexual orientation, disability, gender, nationality, race or ethnicity, or religion. Petitioners’ request for judicial notice is GRANTED, including the request for judicial notice of the Health Ed Content Standards. District’s opposition was timely filed and served. It was filed 9 court days before the hearing and was served by a means calculated to ensure receipt the next business day. Code of Civil Procedure section 1005(b), (c). District’s request for judicial notice is GRANTED, except for the request for judicial notice that former State Senator Sheila Kuehl was the first openly gay person elected to the California Legislature, which is DENIED. Petitioners’ request for judicial notice is GRANTED. Petitioners’ request to introduce oral testimony is DENIED. District has not taken the position that the case is moot because Lesson 9 has already been taught. In addition, Petitioners have already offered declarations stating that Lesson 9 has not been taught to at least some of their children. For that reason, there is need for oral testimony to show that Lesson 9 has not been taught to some of District’s students. District’s request for a continuance is DENIED. The matter has been fully briefed, the dispute is ongoing, and there is no showing that the issues in this case will necessarily be mooted by the decision of District’s Board on December 8, 2009. The Court’s ruling may also be relevant to the outcome of the December 8, 2009 meeting. District’s request that five Petitioners be dismissed with prejudice is DENIED. There is no need for the Court to rule on this issue, since District does not prove or contend that none of the Petitioners has standing.

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