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Education Reporter

Federal Judge Dismisses Homosexual 'Diversity' Suit

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In April 2005, David Parker spent a night in jail following conflict with his son's school over books about homosexuality. His son Jacob, then in kindergarten, had brought home a "diversity book bag" containing a book entitled Who's in a Family? The book pictured various groupings including same-sex couples. David and Tonia Parker complained to the Lexington, MA school district and asked to be notified in advance when the school would be teaching their son about homosexuality. At a meeting with school officials, Mr. Parker insisted that the school accommodate his request for advance notice, and refused to leave the meeting room until they did so. The school called the police, who arrested Parker for trespassing. (See Education Reporter, July 2005.)

Supt. Paul Ash responded by instructing teachers not to notify parents about materials and discussions about homosexuality. "Parents can't pick and choose what they want their kids to study," he told the Los Angeles Times (10-20-05).

In 2006, on the second anniversary of Massachusetts' same-sex marriage decision, eight to ten students surrounded seven-year-old Jacob Parker during recess and physically attacked him. (See Education Reporter, June 2006.)

Now the Parkers are in the news again, following a federal judge's decision to dismiss the parents' suit against the Lexington public school system. The suit, David Parker et al. v. William Hurley et al., went before the U.S. District Court, District of Massachusetts. Chief Judge Mark L. Wolf wrote the decision dismissing the parents' constitutional claims.

"In essence, under the Constitution public schools are entitled to teach anything that is reasonably related to the goals of preparing students to become engaged and productive citizens in our democracy," wrote Judge Wolf. "Diversity is a hallmark of our nation. It is increasingly evident that our diversity includes differences in sexual orientation. . . . It is reasonable for public educators to teach elementary school students about individuals with different sexual orientations and about various forms of families, including those with same-sex parents, in an effort to eradicate the effects of past discrimination, to reduce the risk of future discrimination and, in the process, to reaffirm our nation's constitutional commitment to promoting mutual respect among members of our diverse society."

The court based its decision primarily on the 1995 sex education case Brown v. Hot, Sexy and Safer Productions. In that case, the First Circuit Court of Appeals declared that parents' constitutional right to raise their children does not include restricting public school curriculum, and that the First Amendment right to free exercise of religion is not violated by public school curriculum that contradicts parents' religious beliefs. Wolf also referenced Fields v. Palmdale School District, in which judges stated that "Parents have a right to inform their children when and as they wish on the subject of sex; they have no constitutional right, however, to prevent a public school from providing its students with whatever information it wishes to provide, sexual or otherwise, when and as the school determines that it is appropriate to do so." In his own decision, Judge Wolf attempted to prove that such decisions pertain equally to the youngest and oldest students in public schools.

"Parents do have a fundamental right to raise their children. They are not required to abandon that responsibility to the state," Wolf also wrote. He pointed out that the plaintiffs could send their children to a private school, homeschool their children, or attempt to elect like-minded people to the Lexington School Committee. "However," he wrote, the plaintiffs "have chosen to send their children to the Lexington public schools with its current curriculum. The Constitution does not permit them to prescribe what these children will be taught."

Wolf dismissed the Parkers' claims without prejudice. Massachusetts law requires parental notification and an opportunity to exempt children from curriculum that "primarily involves human sexual education or human sexuality issues." The Lexington school district argued in court that this policy does not apply to teaching about homosexuality or same-sex marriage. In his statement, Wolf appeared to agree with the school district on how the Massachusetts statute should be interpreted. "An exodus from class when issues of homosexuality or same-sex marriage are to be discussed could send the message that gays, lesbians, and the children of same-sex parents are inferior and, therefore, have a damaging effect on those students. . . . It might also undermine the defendants' efforts to educate the remaining other students to understand and respect differences in sexual orientation."

The other plaintiffs in the case, Robert and Robin Wirthlin, sent their 1st-grader to the same school in Lexington. In their son's class, the teacher read King & King, a story about homosexual romance and marriage.

The Parkers, Wirthlins and their legal counsel plan to appeal to the First Circuit Court of Appeals.

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