Court Rejects Challenge to Curriculum Guide on Genocide

By Mark Walsh — August 18, 2010 2 min read
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A state education commissioner’s decision to alter an advisory curriculum guide on genocide and human rights in response to political pressure did not violated the First Amendment, a federal appeals court has ruled.

The case involves a Massachusetts curriculum guide released in 1999, a year after the passage of a state law that required the state board of education to “formulate recommendations on curricular material on genocide and human rights issues, and guidelines for the teaching of such material.”

Then-Education Commissioner David P. Driscoll circulated a draft of the guide that included a reference to the genocide of Armenians by the Ottoman Turkish empire in 1915 and following years. This prompted a request from a local Turkish cultural group to add references to the “contra-genocide perspective.”

Driscoll added such references and some links to Turkish Web sites, but he later removed them from the document, citing the fact that the legislation required the state board to “address the Armenian genocide and not to debate whether or not it occurred,” according to court documents.

A group of parents, students, teachers, and the Assembly of Turkish American Associations sued, arguing that the removal of Turkish references in the document violated their First Amendment rights to “inquire, teach and learn free from viewpoint discrimination.”

The plaintiffs lost in a federal district court and in an Aug. 11 decision by a panel of the U.S. Court of Appeals for the 1st Circuit, in Boston.

Retired U.S. Supreme Court Justice David H. Souter served on the panel, and he wrote the unanimous opinion in Griswold v. Driscoll.

Souter said the case boiled down to whether the document on human rights and genocide amounted to a “virtual school library,” as the plaintiffs argued, with its lists of reference materials and Web sites, or was more like an element of the state curriculum, as the state contended.

If the library metaphor were accepted, Souter said, the decision the remove “contra-genocide” references from the document would be subject to the Supreme Court’s 1982 decision in Board of Education, Island Trees Union Free School District No. 26 v. Pico.

In that case, the court ruled for students who challenged the removal of certain books from a school library under orders from the local school board. A mere plurality of the court concluded that a school board could not remove books from a library for the purpose of denying students access to ideas unpopular with board members.

Souter said Pico did not apply to the Massachusetts case because the decision to remove the contra-genocide references was not forced from above but was made by the same official—the state commissioner—who had inserted them earlier.

Souter said that even though the guide has been made available to students, “the overwhelming obvious point of the guide is to provide teachers with a framework and sources of materials for teaching ‘genocide and human rights issues’ as a subpart of the existing curriculum, for which no standard text or anthology is assumed to be available or sufficient.”

“The revisions to the guide after its submission to legislative officials, even if made in response to political pressure, did not implicate the First Amendment,” Souter concluded.

A version of this news article first appeared in The School Law Blog.