Parents may not exempt their children from anti-bullying curriculum about non-traditional families, says school district in lawsuit

Answer to first amend petition for writ of mandate, filed 10-22-09, in Balde v. Alameda Unified School District, No. RG09-468037 (Cal. Alameda County Super. Ct.)

As readers of this site know, I have been monitoring a lawsuit in Alameda, a San Francisco Bay Area city. Plaintiff parents seek a judicial order requiring Alameda Unified School District (AUSD) to allow objecting parents to exempt their children from a curriculum about families with gay and lesbian parents. The District designed the program, called the Safe School Community Curriculum - Lesson 9, to prevent bullying against gay and lesbian students and against students of non-traditional families. The parents have expressed religious objections to participation by their children in Lesson 9. (For more on Lesson 9, see this post.)

Cal. Educ. Code Sec. 51240 allows for exemption of students from "health instruction" if parents notify public school officials that a school's "health instruction" violates their religious priniciples. Does Lesson 9 qualify as "health instruction" for the purpose of the law? The Balde plaintiffs maintain that it does; in their October 22nd answer, AUSD maintains that it doesn't. AUSD claims Lesson 9 is instead "part of anti-bullying and anti-harassment curriculum adopted pursant to the District's statutory duty to provide safe and non-discriminatory schools to all students." The California Student Safety and Violence Prevention Act of 2000 provides one of AUSD's "statuory duties." (I have already posted on the merits of AUSD's aniticipated position.)

The case interests me not just because I call Alameda home, but also because it has bearing on a proposed initiative to repeal California's constitutional ban on same-sex marriage. (For convenience, I will call that ban "Prop. 8.") The case shows that even in a state with a constitutional ban on same-sex marriage, opponents of same-sex marriage still allege that public schools "indoctrinate" students in lessons about non-traditional families, contrary to the religious values of their parents. They characterize "indoctrination" as a requirement that all public school students, without exception, participate in any program about such families, even if it is a social science lesson on different types of families throughout the world.

In fact, whether parents in California may exempt their children from curricula like Lesson 9 depends, not on whether the state bans same-sex marriage, but on other laws, including laws on state education, violence prevention, and anti-discrimination.

Following the strategy of last year's Yes on 8 campaign in California, Yes on 1 in Maine has frightened voters about alleged public school "indoctrination" unless they repeal Maine's marriage-equality law. Maine's attorney general recently issued an opinion that the state's marriage-equality law has no impact on public school instruction. Nevertheless, as the New Republic reports,

A recent Yes On 1 ad shows a nervous-looking school counselor discussing the children's book Who's In A Family?, which includes references to families with LGBT members and is part of a much-contested anti-bullying curriculum in Alameda County, California.

If the Court does not dismiss the Balde lawsuit, it may provide an opportunity to opponents of a future campaign to repeal Prop. 8. They could claim that without a ban on same-sex marriage, "indoctrination" programs will become more commonplace, even though other laws - not bans on same-sex marriage - affect whether public schools in California require children to learn about families with gay or lesbian parents.