Brief supporting petition for writ of mandamus in Balde v. Alameda Unified School District, why it matters, and AUSD's likely counsel

Memorandum of points and authorities supporting petition for writ of mandamus in Balde v. Alameda Unified School District, No. RG09-468037 (Cal. Alameda County Super. Ct.), filed 09/21/09

As readers of this site know, I have been following a lawsuit in my home town of Alameda, California. In Balde v. Alameda Unified School District (AUSD), plaintiff parents claim a right, under Cal. Educ.C. §51240, to excuse their children from a public school curriculum designed to remedy anti-gay bullying. The curriculum, Safe School Community Curriculum - Lesson 9 ("Lesson 9"), includes instruction on gay families that the parents find at odds with their religious principles. When the AUSD Board adopted Lesson 9 in May, the Board did not also offer an opt-out for these parents. They now allege that Lesson 9 meets the definition of "health instruction" for the purpose of Educ.C. §51240, which entitles them to excuse their children upon written notice.

Of course, the 09/21/09 brief doesn't address AUSD's legal duty to protect the equal right of students to a quality education. State law protects from harassment students who are gay or lesbian, or whose parents are. Although Lesson 9 shares characteristics of "health instruction" as the state Board of Education defines it, so do other curricula, such as social science studies on global diversity in families. Lesson 9 was not developed to advance the goals of health instruction; it was developed to remedy discrimination and prevent harassment. I expect AUSD to mount a compelling defense that Lesson 9 is not health instruction, any more than a social studies program is that has lessons about families. Moreover, other school districts have adopted the same type of curriculum, apparently without controversy. (See, for example, page 9 of this document describing a program by another Bay Area school district.)

Why does the case matter? I have keen interest in a lawsuit that divides my community of Alameda over the extent of legal protections of religious values and students. But the charge of "gay indoctrination in schools" has lately received its predictable share of attention in Maine, owing to tactics that originate in the Prop. 8 campaign. (See posts here and here.) Of course, if opponents of gay marriage in Maine are right, then lawsuits like Balde shouldn't be necessary. Nevertheless, if this lawsuit is not dismissed, Prop. 8 supporters will likely use Balde as an opportunity to defeat a 2010 or 2012 campaign to repeal Prop. 8.

The only real news in the case, incidentally, is that attorneys Louis Leone and Katherine Alberts, of Bay Area law firm Stubbs & Leonne, were noticed (at page 14) in the brief. I expect that they will represent AUSD. The firm focuses on legal issues involving public school districts.