Mass. families challenge "political" choice of teaching materials under 1st Amendment



First Amendment lawyers are asking a federal appeals court in Boston to decide that students' First Amendment rights were violated when the state of Massachusetts deleted items from a list of "approved" history teaching materials, for what the students allege were political reasons.

The case, Griswold v. Driscoll, is worth watching for several reasons -- among them, that it may test the strength of the First Amendment interest that courts are willing to afford to a listener, as opposed to a speaker, in the school setting.

In a brief filed October 5 with the First Circuit U.S. Court of Appeals in Boston, attorneys Harvey Silverglate, David Duncan and Norman Zalkind contend that the Massachusetts Commissioner of Education violated the First Amendment by deleting certain controversial teaching materials from a state database of materials available for classroom use. The materials related to the mass killing of Armenians during the World War I era; the circumstances of and motivations for the killings remain, almost a century later, a disputed issue that arouses passionate disagreement.

In a June 10, 2009 order, U.S. District Judge Mark L. Wolf threw out the families' case, finding no First Amendment infringement. The judge acknowledged that the Supreme Court has indicated that, in the context of school libraries, it can violate the First Amendment to yank materials from the shelves simply because of disagreement over controversial editorial content. But he said the materials challenged in Griswold were different, because these materials were meant to be presented to a classroom of captive listeners, not merely made available on the shelves for readers to discover on their own.

Federal courts are notoriously hesitant to wade into controversies over schools' selection of curricular materials. That was clearly the concern driving the district judge, who said in his ruling: "[P]ublic officials generally have the right to decide what should be taught in the effort to prepare students for citizenship."

This is not, however, a classic "school management" case in which a court is being asked to second-guess spur-of-the-moment management decisions by experts with unique access to the facts on the ground. This is a state-level policy choice -- and if the plaintiffs are right, one motivated by reasons other than good educational practice. It seems a questionable exercise of restraint for a federal court to refuse to intercede out of deference to an "expert" decision when the whole point of the lawsuit is that the educational experts may have been overruled by politicians in the first place. Courts may (though this excuse is greatly over-used) lack the expertise to evaluate the merits of an expert curricular decision, but they are plenty competent to decide whether a state-level policy decision is constitutional.

The district judge concluded that the families' proper remedy was to get involved in the political process they were criticizing -- that is, to start lobbying the Department of Education and their legislators, just as they allege their opponents had done. This overlooks the underlying First Amendment issue, however. Whether students get to read the material of their choice is not necessarily a referendum to be won by the side with the most votes. The First Amendment exists to make sure that minority viewpoints have a chance to get aired. If one side alleges that the state has kept its viewpoint from being heard, there is a legitimate First Amendment issue that courts cannot simply punt to other branches of government.