Law Update: Suit Challenging Display About Gay Parents Rejected

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Parents in Amherst, Mass., who objected to an elementary school's display that showed photographs of gay and lesbian couples with their children have failed in their bid to have it removed.

U.S. District Judge Frank H. Freedman of Springfield, Mass., on May 15 rejected a request by the parents for an injunction halting the exhibit. It has been displayed most recently in the library of Marks Meadow Elementary School in Amherst, but is scheduled to travel to the district's other elementary schools.

The display, titled "Love Makes a Family: Living in Gay and Lesbian Families," includes about 20 photographs that show homosexual couples with their children and a 20-page text in which the family members talk about their lives.

The parents' lawsuit, filed in a state court but later moved to federal court, alleged that the exhibit violated their rights under state civil rights and sexual-harassment laws.

Gregory Hession, the lawyer for the parents, said that even though the exhibit did not deal with sexually explicit topics, it was still inappropriate for elementary-age children.

"It isn't really educational," he said. "It's advocacy for a political agenda that [school officials] are trying to shove down the throats" of parents, he said.

Alan Seewald, the lawyer for the 3,900-student Amherst district, said that in deciding on the exhibit, school authorities were exercising their right to control the curriculum.

"Public education just can't be a smorgasbord" of curriculum presentations responding to the concerns of different groups, he said.

Under the district's policy on controversial issues, parents were advised about the exhibit and given the opportunity to exclude their children from seeing it, Mr. Seewald said.

Mr. Hession said the opt-out policy covered an official viewing and class discussion of the exhibit but students could still view it in the library on their own.

The parents do not plan to appeal the ruling on the injunction and will not pursue a trial of their suit, he added.

Zachariah Toungate and his long, thin ponytail have been in the Texas courts for almost six years. In the latest round, an appeals court has ruled that the Bastrop school district's hair-grooming rule for boys violates a state sex-discrimination law.

Zachariah was an 8-year-old 3rd grader at Mina Elementary School in the 5,200-student district east of Austin in the fall of 1990 when his ponytail smacked up against the district's grooming code, which barred hair beyond shirt-collar length for boys.

Backed by his parents, the boy refused to cut his hair and served four months of in-school suspension before his parents pulled him out of the public school and began teaching him at home.

The Toungates challenged the grooming policy, and the district initially won in a state court. But an appeals court sent the case back for a trial.

A state judge found last year that the hair rules violated both a state gender-discrimination law and an equal-rights amendment to the state constitution.

In a 2-1 ruling on May 8, a Texas Court of Appeals panel upheld the lower court. The panel's ruling noted that the courts have witnessed an explosion of legal challenges to public school grooming codes since the late 1960s because "schoolchildren have increasingly looked to hair length as an important aspect of personal identity."

The court said the rule, which allowed girls to have long hair, violated the gender-discrimination law. The district had argued that the rule was necessary to prevent gang activity and to instill a sense of "gender identity" in children.

The court rejected those arguments. There was no evidence of gang activity at Zachariah's elementary school, the court said, and the gender-identity argument was "entirely repugnant to the gender-discrimination protection" provided by state law.

The dissenting judge pointed to a 1995 Texas Supreme Court decision in a similar hair-length dispute. In that case, the state high court rejected the challenge under the state's equal-rights amendment and said the courts should not use the state constitution to "micro-manage" the schools, including disputes over grooming rules.

Paul Hunn, the lawyer for the Bastrop district, said the district would appeal the ruling to the state high court.

The Michigan Supreme Court has struck down a school district's requirement that students live with a legal guardian in order to enroll in its schools.

The court said the Portage district's policy ran counter to a state law that allows children to attend local schools if they have been placed with relatives because they would provide a more suitable home.

The issue arose in the case of a South Carolina mother who in 1993 sent her son, who is now 17, to live with her brother in the western Michigan city because she said it would be a more suitable home. After a few months, the district told the man he would have to begin legal-guardianship proceedings.

The man sued the district. He claimed its policy ran counter to the state education code, which said children placed in a relative's home "for the purpose of securing a suitable home for the child and not for an educational purpose" can enroll in the local schools.

Two lower courts ruled for the school district, but the state supreme court reversed the decisions.

"While the school district would prefer not to make a factual determination regarding the purpose of the placement of a child in the home of a relative, the statutory requirements of educational residency may not be rewritten for the purpose of expediency," the high court said.

--Mark Walsh
e-mail: [email protected]

Vol. 15, Issue 37

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