The book list was the final piece of a new curriculum intended to better address bullying in schools. The books and lessons that district officials and teachers will develop around them will replace Lesson 9, a series of lessons intended to combat anti-gay bullying that the board decided in May 2009 to add to its existing anti-violence curriculum.

“I think that this list will give the tools to teachers that they have asked for to help our children to be safe and to understand themselves,” said Trustee Tracy Jensen, a vocal supporter of Lesson 9 and the curriculum that has been proposed in its wake.

Board Vice President Mike McMahon, who had voted against Lesson 9, said he was comfortable with the book list because it ensured representation. “That’s why I’m comfortable with this list,” McMahon said before voting for it.

Trustee Trish Hererra Spencer said she was concerned that students of different races, ethnicities and nationalities and with disabilities were not adequately represented in the books. She cast the sole vote against putting the books in classrooms.

“We need to seriously address bullying,” Hererra Spencer said.

Parents who had opposed Lesson 9 said they were okay with the books recommended for grades K-2 that would address sexual orientation. But they wanted district officials to reconsider five books addressing sexual orientation and gender in grades 3-5.

“Alameda Concerned Parents supports anti-bullying. But that’s not what this literature list is. This is a political issue,” said Kerry Cook, speaking for the group. “This is not anti-bullying literature. This is homosexual and transgender acceptance training.”

But supporters of the list said the books only promote understanding that different groups of people exist in society. And they said that promoting that understanding will further the schools’ mission of being safe places for children to learn.

“You’re teaching values of humanity and basically self-acceptance. I encourage the board to stand up and show leadership for those values,” said Kenneth Kahn, a longtime substitute teacher in the district.

The school board voted in December 2009 to add new anti-bullying lessons for students in grades 3-5 and a literature guide, and to put together a list of new books to address race, religion and other groups that are to be protected from bullying and harassment as a matter of state law.

The proposed final list includes a book on sexual orientation for each grade. The list includes “The Family Book,” which introduces an array of different types of families that would be taught to kindergartners; “Heather Has Two Mommies,” about a preschooler with two moms who learns about her classmates’ different families, for grade two; and “And Tango Makes Three,” a story about two male penguins raising a baby penguin, for grade three.

The list also includes books that deal with disabilities, religion, gender, race and ethnicity. The list also includes “My Brother Charlie,” a book about a girl and her autistic twin, which would be taught to kindergartners; and “The Golden Rule,” a book about the rule and how it is considered in different religions, for first graders.

The 21 books on the district’s proposed list are intended to bolster understanding of people of different races, ethnicities and nationalities; genders; religions; sexual orientations; and people with disabilities in order to curb bullying based on those differences. The books would supplement those already in the district’s elementary schools and a generic anti-violence curriculum approved by the board late last year.

They would also replace Lesson 9, the anti-gay bullying lesson the board approved adding to the district’s existing anti-violence curriculum in May 2009. The lesson was generated to address what some felt was a lack of positive images of gays and their families in the district’s existing curriculum.

Supporters said the lesson offered a much-needed bulwark against anti-gay bullying which they said began as early as grammar school and had devastating consequences for children on the receiving end of it. But opponents said the lesson went too far, trampling on religious beliefs that condemn homosexuality and their authority as parents to tell their children right from wrong.

Opponents also criticized the district for failing to make the same efforts to address bullying based on race, religion and other factors. District officials ultimately conceded that more could be done to address those issues, and they pledged to broaden the curriculum’s scope.

The school board voted in December 2009 to add new anti-bullying lessons for students in grades 3-5 and a literature guide, and to put together a list of new books to address race, religion and other groups that are to be protected from bullying and harassment as a matter of state law. The list was generated by a group of teachers with input from interested community members.

Teachers looked at a state literature list, took community suggestions and also looked to see what books that addressed the district’s anti-bullying efforts were already being taught. They found books on race, religion, gender, nationality and disability, but none that addressed gender identity or sexual orientation.

The proposed final list includes a book on sexual orientation for each grade. The list includes “The Family Book,” which introduces an array of different types of families that would be taught to kindergartners; “Heather Has Two Mommies,” about a preschooler with two moms who learns about her classmates’ different families, for grade two; and “And Tango Makes Three,” a story about two male penguins raising a baby penguin, for grade three.

The list (which is below) also includes books that deal with disabilities, religion, gender, race and ethnicity. The list also includes “My Brother Charlie,” a book about a girl and her autistic twin, which would be taught to kindergartners; and “The Golden Rule,” a book about the rule and how it is considered in different religions, for first graders.

Alameda Concerned Parents, a group of parents that has opposed Lesson 9, issued a statement Monday opposing the district’s book choices dealing with sexual orientation, and they want five of the books taken off the list. They said inclusion of four of the books – “Heather,” “Tango,” “In Our Mother’s House” and “The Harvey Milk Story” – would violate the school board’s policy on controversial issues. And a fifth, “All I Want to Be is Me,” could create gender confusion, they said.

“Eight out of the 21 books promote changing gender or claiming homosexual identity, and none of the books protect children who respectfully disagree,” Kerry Cook, a member of the group who worked on the district’s recent anti-bullying efforts, said.

The effort is an outgrowth of the Board of Education’s approval last year of a set of elementary school lessons aimed at curbing anti-gay bullying and the subsequent recognition that more could be done to curb bullying based on race and nationality, religion, gender, disability. All six groups are considered “protected classes” that must be shielded from discrimination and harassment as a matter of state law.

Interim Assistant Superintendent Ruben Zepeda said a teacher work group has whittled the list down to 50 books from 140, and that he hopes to reduce that number to 15 for the school board’s consideration on April 13.

“Hopefully we’ll have a list that’s respectful of what teachers are teaching and respectful of the six protected classes,” Zepeda told the board.

District staff gathered information about books already being taught that addressed the six classes in order to get a sense of what needed to be added. They found that books on nationality were taught in every elementary grade but kindergarten, race in grades three through five, religion in grade three and sexual orientation not at all, save literature added through the anti-gay bullying Lesson 9 the board approved in May 2009.

They also put together a book list based on a state reading list and community recommendations and took comments from community members regarding the book selection. Zepeda said teachers looked for books that were inclusive, engaging, grade-appropriate and that promoted visibility, awareness and respect while being sensitive to the local community, among other criteria.

The books are available for public review in room 202E of the district office through March 13.

One parent who fought Lesson 9 said she appreciated the books that were selected to represent the African American community, but she wanted to see biracial and Asian families better represented. She also said she wants to make sure people with religious faiths are fairly represented.

“Your resolution states that all pupils have the right to participate in the education process free from discrimination and harassment, and that does include religion,” said Kellie Wood, a parent who opposed Lesson 9 and was active in efforts to recall the three school board trustees who supported it.

Others in the crowd, which was a fraction of the one that faced board members during the Lesson 9 debates, said the support the district’s efforts and they want to make sure that its teachings continue.

“I would encourage you to keep on the course you’re on,” Mark Dietrich, who founded the Concerned Alameda Parents website in support of the district’s efforts.

School board Trustee Tracy Jensen noted that the district’s existing book list includes books addressing every protected class but gays.

“It demonstrates to me that this board did the right thing by adopting Lesson 9,” Jensen, who has been a vocal backer of the lesson, said.

Trustee Trish Spencer said she’d like to see some additional groups covered, including Filipinos – who make up a substantial portion of the district’s population – and atheists and agnostics.

The listed cost of the books is $30,000, though Zepeda said he anticipates the actual cost will be less than that. If the board approves a book list, teachers will work separately to create support materials to teach the books.

Separately, the board voted to formally close Chipman Middle School and to extend the attendance zone for Wood Middle School to include former Chipman students. A new charter school, The Academy of Alameda Middle School, is anticipated to open at Chipman in the fall.

Also, the state Department of Education this week gave Alameda Unified a qualified certification, meaning the state has determined that, based on current projections, the district may not meet its financial obligations for one or more of the next three years.

Alameda Unified has been on and off the state’s qualified certification list for several years, and this time around, it is joined by dozens of other districts and county offices of education, including five other districts in Alameda County. The state has determined that one Alameda County district, Hayward Unified, will not meet its financial obligations for one or both of the next two fiscal years, earning it a negative certification.

The certification is based on financial projections the district released in December. I just got a note from School Board Vice President Mike McMahon indicating the district will be coming off that list in light of just-released financial projections that followed the inking of a memorandum of understanding with teachers.

Updated 6:00 a.m. Friday, February 19

A pair of Alameda parents is suing the school district and school board, claiming the board violated the Brown Act by voting to readopt the anti-gay bullying Lesson 9 and to adopt accompanying literature that they said wasn’t included in staff’s original recommendation.

Kerry Cook and Serena Dietrich filed a suit in Alameda County Superior Court today that seeks to nullify the school board’s December 8, 2009 vote to readopt Lesson 9 and to adopt a Links to Literature guide. Cook and Dietrich’s attorney, Peter Hagberg, said the district added the Links guide at the last minute and that it didn’t have re-adoption of Lesson 9 on the agenda for the December 8 meeting. He also claimed the guide was not available when he went to the district’s office to view it.

Hagberg wrote the district a letter on January 4 asking them to rescind the vote and then told school board members at their February 9 meeting that he intended to sue if they did not do so. Hagberg did not return a call seeking comment.

The district’s attorney, Danielle Houck, said Thursday afternoon that the district hadn’t been served with the suit yet but that it doesn’t believe it violated the Brown Act. “The District does not believe that it violated the Brown Act and intends to vigorously defend the litigation. We have tendered the complaint to our insurance carrier and expect that Lou Leone and Katie Alberts of Stubbs & Leone, the same lawyers who successfully represented the District in the Lesson 9 litigation, will defend the District in this litigation,” Houck wrote in response to a request for comment on the suit.

The board voted 4-1 to adopt the Links to Literature guide and to keep Lesson 9 in place until it was able to adopt curriculum to replace it, with Trustee Trish Spencer casting the lone “no” vote. Spencer had maintained that a vote earlier in the evening in which the board opted to maintain its existing Caring School Community lessons and add other lessons for upper elementary grades closed the matter, but her colleagues on the board disagreed.

Hagberg had said at that meeting that the recommendation to adopt Links to Literature wasn’t on the agenda 72 hours before the meeting as is required by the Brown Act, and that he was unable to view the book when he visited the district’s offices. Board President Ron Mooney and Vice President Mike McMahon said at the December 8 meeting that they would be willing to wait until the board’s next meeting to approve the Links guide.

But Houck said the recommendation to adopt the guide was posted with 72 hours notice as the Brown Act requires, and she and Interim Assistant Superintendent Ruben Zepeda said the guide was available, though Zepeda said there may have been a mixup when Hagberg came to view it (basically, he said the book wasn’t in its usual spot when Hagberg came to see it).

Superintendent Kirsten Vital said her recommendation had been to keep Lesson 9 in place until the district approved a list of other books that would replace Lesson 9 and address bullying based on other factors, including race, religion and disability.

Cook is a founder of Alameda Concerned Parents, a group that opposed Lesson 9, while Dietrich was one of the original signers of a petition to recall the three school board members who voted to approve Lesson 9 in May 2009.

The case number is RG10498999.

Kerry Cook and Serena Dietrich filed a suit in Alameda County Superior Court today that seeks to nullify the school board’s December 8 vote to readopt Lesson 9 and to adopt a Links to Literature guide. Attorney Peter Hagberg said the district added the Links guide at the last minute and that it didn’t have readoption of Lesson 9 on the agenda for the December 8 meeting.

The board voted 4-1, with Trustee Trish Herrera Spencer casting the “no” vote, to adopt the items until a specific book list was generated to help the district curtail bullying of a broader spectrum of students.

Cook and Dietrich’s attorney, Peter Hagberg, could not immediately be reached for comment. Hagberg wrote the district a letter on January 4 asking them to rescind the vote and then told school board members at their February 9 meeting that he intended to sue if they did not do so.

The district’s attorney, Danielle Houck, said the district hasn’t been served with the suit yet but that it doesn’t believe it violated the Brown Act. “The District does not believe that it violated the Brown Act and intends to vigorously defend the litigation. We have tendered the complaint to our insurance carrier and expect that Lou Leone and Katie Alberts of Stubbs & Leone, the same lawyers who successfully represented the District in the Lesson 9 litigation, will defend the District in this litigation,” Houck wrote in response to a request for comment on the suit.

The case number is RG10498999. Stay tuned for the full story Friday.

Photo by Jan Watten

As a Jewish person, or a person of Jewish ancestry, or a non-religious, Jewish-identified person – or however you like to describe me (and you would think I would have adopted an appropriate phrase after 39 years of life, but I have not) – I am not always, nor is my family’s life always, in sync with the public school community, its practices and structures.

“Why don’t we get school off for Hanukkah?” my son has asked. (This year, Hanukkah begins today, one week before the start of AUSD’s two-week ‘winter’ vacation.) I explain to my son: “We live in a nation that is primarily Christian, one where the vast majority of people’s family traditions come from Christianity” – because, of course, we have many friends who are not even slightly religious, but who celebrate Christmas with their families – with singing and Santa and cookies and gifts.

Being Jewish makes us one of many minority families in the Alameda Unified School District. And at school, because of our cultural heritage, many things that are said by other children or by teachers, many things made explicit or implicit in school lessons, are not in sync with our family values.

I tend to think that the majority of these disjunctions – though sometimes painful (”Why does Santa not visit the homes of Jewish kids?”) – are in fact good for my children. They’re points where thinking begins, where the most important lessons – those I hold dear above all others – begin. The world is not simple, the world is not the same for everyone, the world is not fair. But we do our best to live in that world, to make sense of that world, to bring kindness to that world. Because if civilization is going to persist, we must live with others who may be different from us. People who may sometimes believe we are less good, less worthy of love, less human.

While a lot of lip service is given to the value of diversity – especially in the recent, months-long brouhaha over Lesson 9, AUSD’s anti-gay-and-lesbian bullying curriculum – I think that face-to-face experience with people whose views are different than ours is essential to the strength of our public schools. Having our children sit in classrooms side by side with children of multiple religious faiths, different family structures, contrasting class backgrounds, varying national origins, demands that we know ourselves – and complicates ideas that we might otherwise take for granted.

This week I had a very long talk with an outspoken opponent of Lesson 9. I am quite sure I disagree with her in at least one fundamental way – I think it is normal and positive and good to build love or a family with another person of the same gender. But I am also, at core, quite sure she wants for her family what I want for mine: warmth, comfort, an ability to love, safety, feelings of purpose and connection. She and I are, I suspect, quite in sync in this way.

But I want to ask her, and others who subscribe to similar beliefs about gayness, to consider the implications of their judgments on gay families. Because despite our laws and protections, we still have plenty of violence against gay people in the world. And words like ‘sin’ or ‘unnatural’ stir that pot. I ask her to understand that these words embody potentially violent judgments.

Specifically, I ask S.E.R.V.E. Alameda – the organization working to recall the school board members who supported it – to excise conflict-building phrases like “homosexual sympathizers” and “activists [who] are poised to wage battle on natural systems that create family” and “card-carrying members of the militant Alameda Education Association” from their website. Rhetoric like this has no place in a community like ours where we pass each other and smile in the aisles at Safeway, where our children play together on the school yard, and where we can all certainly recognize that, at heart, we all want our lives to be peaceful.

If someone had a website that referred to “Jewish sympathizers” or suggested that the fact of my speaking out about my family and our needs meant I was “poised to wage battle on the natural systems that create family,” it would be darn near impossible not to take it personally. And I submit to S.E.R.V.E. that, given that we all live together, given that we want our children to coexist kindly and politely, that this sort of rhetoric, while part and parcel of the national debate, deserves no place in Alameda, or in our safe and inclusive public schools.

The board first voted, 4-1, to retain the district’s existing Caring School Community lessons for grades K-2 and to implement a new curriculum, Steps to Respect, for grades 3-5. Trustee Tracy Jensen voted against the motion, which was put forward by Board Vice President Mike McMahon.

The process then tumbled into chaos as trustees argued about whether to move forward on the rest of Superintendent Kirsten Vital’s recommendations and whether the vote meant Lesson 9, the anti-gay bullying lesson the board adopted in May, was no more. Vital’s other recommendations included adopting Links to Literature, a guide to character-building literature, and moving forward on creating a list of books designed to address bullying based on each of the six “protected classes” (the list I laid out in the lede).

Trustee Trish Herrera Spencer, who said the issue had torn apart the community, said repeatedly that she felt the earlier vote was final and no more motions could be made.

“You are not the only board member,” new board President Ron Mooney said.

Trustee Tracy Jensen then put forward a second motion – which was read several times so everyone understood what they were voting on – to retain Lesson 9 until a replacement that specifically addresses all six of the “protected classes” is put together by Vital and adopted by the board. The board voted 4-1, with Spencer voting no, to put the motion forward.

“We have Lesson 9. It meets the needs right now of students and families,” Jensen said. “We have to protect our students … Let’s not go backwards.”

Jensen and McMahon said they want the community involved in selecting new books to advance its bullying prevention efforts, while Mooney said he’d be glad to see the book list later, rather than sooner, in order to ensure that there’s enough time to get it done right.

Vital’s recommendation was for the teacher committee that helped select the curriculum to put together the book list based in part on community input, and for the list to go to the board for approval in February. She opted not to recommend the use of another book, “Open Minds to Equality,” that teachers said was not appropriate for elementary school students.

The votes followed a contentious public speaking period that saw proponents of the superintendent’s recommendation booing and laughing at opponents who spoke and opponent accusations that the teacher committee that evaluated and recommended the new lessons carried a pro-gay agenda.

“Unfortunately, the teachers felt the responsibility to advance the LGBT cause,” said Alaina Stewart, a parent who had earlier spoken out against Lesson 9. Stewart drew hisses when she suggested the board abandon efforts to put a new parcel tax on the ballot if parents were not allowed to help select anti-bullying books.

Opponents said they thought the district should focus on academics and forget about creating specific lessons, which they said were too divisive.

Proponents, dozens of whom appeared to show their support for Vital’s recommendation, said more specific lessons are needed to combat bullying and that Lesson 9 should not be lost.

“It breaks my heart to think my little son could be sitting in carpet time waiting in vain to see his family represented,” said Kathy Passmore, a district teacher and parent who is also a lesbian. “I can’t believe anyone would be against anything that would make any child feel safe. I hope you would show the common sense and the courage to keep Lesson 9.”

Separately, the board elected new leaders Tuesday night, with Mooney taking the president’s chair and former president Mike McMahon shuffling into Mooney’s previous role as vice president. Spencer had nominated Jensen for the seat, but Mooney won on a 3-2 boys-vs-girls vote. Jensen had nominated Spencer for vice president, but McMahon got the seat on the same vote.

Judge Roesch said the lessons did not constitute health education, as the plaintiffs had contended. State law allows parents to opt their children out of health-related lessons. But it also mandates protection of the rights of students on the basis of sexual orientation, race or ethnicity, nationality, disability, gender or religion, and Roesch ruled that the state Legislature didn’t intend for its mandates on health education to interfere with those protections.

Kevin Snider, chief counsel for the Pacific Justice Institute, which brought the case on behalf of the parents, said he plans to appeal. “We believe the court committed error and we intend to press forward until there is a reversal or Lesson 9 is removed from the school,” Snider said, referring to the district’s moniker for the lessons.

District officials did not wish to comment on the ruling. The School Board is slated to make a decision at its December 8 meeting on new lessons that would include additional lessons for students in grades 3-5 and a reading list to be created to address specific groups. Information on how to review the new lessons is on the district’s website.

Local blogger John Knox White, who is active in the campaign to halt efforts to recall three school board members who voted in favor of Lesson 9 in May, described a dramatic courtroom scene Tuesday.

“You can teach hate and then it’s health education?” Knox White quoted the judge as saying. “You can’t say I’m a bigot, so I don’t have to attend tolerance lessons!”

The recall, incidentally, is moving forward, proponent Kellie Wood told The Island last week. She wouldn’t say how far S.E.R.V.E. Alameda, the group responsible for the recall effort against Nielsen Tam, Ron Mooney and Tracy Jensen, had gotten in its signature collection efforts. The group’s deadline for collecting enough signatures to qualify for a ballot is December 29.

“We are moving forward. There’s no turning back,” Wood said.

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.

Updated 9:24 a.m. Thursday, August 13

A group of 20 Alameda parents have filed a lawsuit against the school district in Alameda County Superior Court because the district has denied their requests to opt out of anti-gay bullying lessons.

The Pacific Justice Institute, a Sacramento group involved in a separate lawsuit against school administrators in Castro Valley over a lesbian pastor’s talk at a high school there, announced the suit in a press release today.

The release said the group filed the suit after numerous parents asked the district for the right to opt out of the lessons but were denied, which the group says is a violation of the state education code. It says that racial tensions and opposite-sex harassment are bigger problems in Alameda’s schools and that the district received no complaints of same-sex harassment in its elementary schools.

A spokesman for the legal outfit was unable to immediately provide a copy of the lawsuit, but a reporter found the case – Aisha Balde vs. the Alameda Unified School District – online on the court’s website. The case filing was not immediately available, but Balde did speak out against the curriculum at contentions public hearings held before the school board approved it.

School Board President Mike McMahon said Thursday morning that the district has not yet been served with the suit.

The school board okayed the curriculum in May, saying it was a necessary step toward curbing anti-gay bullying and giving gays and their families more positive visibility in schools. Superintendent Kirsten Vital also said she would have staff examine the curriculum to ensure that other groups including different races and religions weren’t left out. The lessons are to be taught at elementary schools starting this fall as part of the district’s broader anti-violence curriculum.

Three members of the school board – Tracy Jensen, Ron Mooney and Nielsen Tam – received notices over the weekend that recall campaigns were being mounted against them because they voted in favor of the lessons. A local blogger, John Knox White, has mounted a petition in support of the school board trustees that had garnered more than 200 signatures as of Wednesday night.

The case number is RG09468037, and can be accessed here.