Justices Decline to Hear Challenge to Curriculum Guide

By Mark Walsh — January 18, 2011 3 min read
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The U.S. Supreme Court on Tuesday declined to take up a legal challenge to how Massachusetts handled a curriculum guide on genocide and human rights.

A federal appeals court ruled last year that a decision by the state education commissioner to alter the advisory curriculum guide in response to political pressure did not violate the First Amendment.

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

Then-Education Commissioner David P. Driscoll issued 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 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 curriculum guide, 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 Turkish references were removed under pressure from elected officials kowtowing to the Armenian community. The suit said the removal of the “contra-genocide” references from the document violated their First Amendment rights to “inquire, teach and learn free from viewpoint discrimination.”

The plaintiffs lost before both a federal district court and a panel of the U.S. Court of Appeals for the 1st Circuit, in Boston. Retired U.S. Supreme Court Justice David H. Souter sat on the three-judge panel, and he wrote the August 2010 opinion for a unanimous court that rejected the First Amendment claims. (I blogged about the appeals court decision here.)

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 high court ruled for students who challenged the removal of certain books from a school library under orders from the local school board. A 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.”

In their appeal to the U.S. Supreme Court in Griswold v. Driscoll (Case No. 10-624), the plaintiffs argued that the 1st Circuit court ignored the effects of the explosion in online libraries and Internet educational resources.

“Ignoring modernity, Google, and the explosion of online books, the First Circuit balked at the natural application of Pico to Internet-based school libraries, which are even now displacing brick-and-mortar libraries as electronic books replace hard copy publications,” the appeal said.

The justices declined without comment to hear the appeal.

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