Thursday, August 13, 2009

An island city in the San Francisco Bay, a family of penguins, a lawsuit, and the next Yes on 8 media strategy: Tango's Revenge?

[08/14/09 update: For a related post, see this ADF Alliance Alert.]

Here's a story about my home town, the little-known island city of Alameda, California; a contested family of three Chinstrap penguins, all male; a lawsuit against the local school district; and possible fallout for the debate over whether to try to reverse Prop. 8, if, unlike penguins, the lawsuit takes flight.

On May 26, 2009, the Alameda Unified School District (AUSD) adopted a curriculum to address problems of anti-gay bullying and harassment at public schools in the city of Alameda. In a March 2009 flier, the Board explained why it was preparing to vote on the curriculum, called the Safe School Community Curriculum - Lesson 9 ("Lesson 9"). Under the California Student Safety and Violence Prevention Act of 2000, and other laws, AUSD has a legal duty
to ensure that all students, “ regardless of their sexual orientation or the sexual orientation of their family members,” feel safe in our schools and that all students have equal access to a quality education ... [I]n our teacher training, teachers reported the use of homophobic comments and teasing among K-2 students. Discussing the inappropriate use of particular words can be an effective prevention strategy, which will hopefully require fewer interventions if there is success in reducing teasing and name-calling.
Lesson 9 follows the program of the Welcoming Schools Guide of the Human Rights Campaign Foundation's Family Project. Lesson 9 introduces students to the "shared attributes of healthy familes," including gay and lesbian families. Among other things, children in grades K-3 will read and discuss Justin Richardson's And Tango Makes Three (Simon & Schuster Books For Young Children 2005). The book concerns two Chinstrap penguins who fall in love, and, with a zookeeper's encouragement, hatch and raise a chick, Tango. Wikepedia's entry on the book suggests that it has had a controversial reception.

The AUSD measure does not have an opt-out for students whose parents, on religious grounds, object to having their children learn that familes include gays and lesbians. It is based on a legal opinion referenced in the March flier. The legal opinion quotes the California Safe Schools Coalition document, “School Safety & Violence Prevention for Lesbian, Gay, Bisexual & Transgender Students: A Question and Answer Guide for California School Officials and Administrators”:
Where issues of sexual orientation or gender identity are raised in school programs other than health, family life or sex education instruction, including programs designed to encouragerespect and tolerance for diversity, parents cannot demand their child be exempted from such programs; discussions about LGBT people are not a form of ‘sex education.’ California doesnot have a requirement for notifying parents and guardians for lessons about respect and diversity.
Angered by the failure to include the opt-out, parents voiced their opposition to Lesson 9 at the May 26th meeting of the Board, which narrowly approved it by a 3-2 vote.

In June and July, some of these parents notified AUSD of their demand for an opt-out, claiming that Lesson 9 qualifies as "instruction in health" under California Education Code section 51240. Under this code section, pupils may be excused from such instruction, if it "conflicts with the religious training and beliefs" of their parents or guardians, and if the parents or guardians request excusal in writing. The AUSD Board Superintendant responded to the parents, reaffirming that AUSD does not have a Lesson 9 opt-out.

On behalf of the affected parents, the Pacific Justice Institute yesterday filed a petition for writ of mandate against AUSD. Pacific Justice Institute has a press release, and The Island of Alameda Blog has a post on the lawsuit.

The timing of the lawsuit at least seems suspect. In the run-up to last year's election, Yes on 8 alleged that unless voters adopted Prop. 8, the state's Education Code might be interpreted to require a curriculum of the kind that Lesson 9 represents. In fact, that allegation was one of the statements that Prop. 8 proponents made in the ballot. (See page 56 of the ballot.)

This lawsuit may hatch more than a penguin chick. Given Wikipedia's account of other tangles over Tango, the lawsuit holds promise of conjuring a new fear, a successor to the fear that was so skillfully manipulated during the Prop. 8 campaign. How? Here's an obvious media strategy for Yes on 8's next campaign against an initiative to defeat Prop 8. Call it Tango's Revenge. Under this strategy, California voters may be warned that it's already difficult enough, even with Prop. 8, to keep public school districts from adopting a curriculum like Lesson 9. Look at what AUSD has done! Imagine what will happen if a majority of voters fail to keep same-sex couples from marrying. Public schools will have renewed incentive to require children to learn - as the 2008 ballot proponents alleged - that "there is no difference between gay marriage and traditional marriage." Your elementary-school children will forced to read And Tango Makes Three!

The California Student Safety and Violence Prevention Act of 2000 added a provision that "nothing in [the Act] requires the inclusion of any curriculum" to fulfil its purposes. And the ACLU and National Center for Lesbian Rights recently argued that preventing LGBT instruction in public schools does not provide a legitimate government interest to deny the right to marry to same-sex couples. They also contend that Prop. 8 has no bearing on whether public schools adopt a curriculum like AUSD's - a contention that the lawsuit supports. But the legal arguments will make no more difference in the next campaign by Yes on 8 than they did in the last one. So the lawsuit gives Yes on 8 a promising media strategy to defeat the next anti-8 initiative. And that is why the AUSD lawsuit has been timed rather propitiously - "time and circumstance happeneth to them all" - even if its timing to coincide with the initiative debate represents nothing more than coincidence.

[Thanks to the Alliance Defense Fund for its update on this lawsuit.]

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