An eminently predictable result under current First Amendment law (Griswold v. Driscoll, D. Mass., June 10, 2009), but still worth noting, I think, for the clear First Amendment defense of leaving curricula to the political process (in the second to last paragraph of the excerpt below):
In 1998, the Massachusetts Legislature directed the state Board of Education … to prepare and distribute to all school districts an advisory Curriculum Guide for teaching about genocide and human rights. The Convention on the Prevention and Punishment of the Crime of Genocide, which was adopted by the United Nations in 1951, defines “genocide” as an effort intended to “destroy, in whole or in part, a national, ethnic, racial, or religious group” by killing members of the group or in other ways. The act requiring the preparation of the Curriculum Guide expressly provided that it could include materials concerning “the Armenian genocide.” The Curriculum Guide as originally drafted pursuant to the Legislature’s direction included a section on the “Armenian Genocide,” that began, “[i]n the 1890′s, and during World War I, the Muslim Turkish Ottoman Empire destroyed large portions of its Christian Armenian minority population.”
After the issuance of the draft Guide, a Turkish group urged the Commissioner of Education to revise the Guide to include references to sources supporting the viewpoint that the fate of the Armenians did not result from a Turkish policy of genocide, but rather from other factors, including an Armenian revolt in alliance with Russia against the Ottoman Empire. The parties refer to such sources as “contra-genocide” materials. In response to this request, the Commissioner added references to several contra-genocide websites to the Guide which was filed with the Legislature in March, 1999.
The inclusion of references to the contra-genocide websites in the Guide prompted a strong response from the Armenian community and its supporters. They urged then Governor Paul Cellucci to have those references removed from the Guide. The Commissioner subsequently removed the references to the contra-genocide websites from the Guide in June, 1999.
In August, 1999, Turkish groups, including the Assembly of Turkish American Associations (the “ATAA”), complained about the removal of the contra-genocide websites. However, the Commissioner did not restore the references to the contra-genocide websites. Rather, he responded that the Legislature had encouraged the inclusion in the Guide of materials concerning the “Armenian genocide” and, he wrote, it would be inconsistent with that direction to include references that rejected the idea that a genocide had occurred. The Commissioner did, however, note that the Guide was only advisory, school districts could develop their own approaches to teaching about the matter in controversy, and the Turkish community was free to advocate its viewpoint. The Commissioner recommended that if the Turkish community wished to pursue its concerns, it do so through “legislative channels.” …
The plaintiffs allege that the Board removed the contra-genocide websites from the Curriculum Guide solely for political, rather than educational, reasons. They contend that this was unlawful….
[P]ublic schools play a vital role in preparing students for citizenship in our nation. Except in limited circumstances, decisions concerning what should be taught must be made by state and local school boards rather than by federal judges.
Public officials may not establish educational policies tailored to the tenets of a religious group. Nor may they compel students to profess a prescribed belief, or limit their right to express themselves in school unless the restriction is reasonably related to a legitimate educational purpose. However, none of these concerns are implicated in this case.
Public officials have the right to recommend, or even require, the curriculum that will be taught in public school classrooms. Doing so is a form of government speech, which is not generally subject to First Amendment scrutiny. There is no requirement that such government speech be balanced or viewpoint neutral. Rather, public officials generally have the right to decide what should be taught in the effort to prepare students for citizenship.
Plaintiffs do not assert that they initially had a right to have contra-genocide references included in the Curriculum Guide. However, they argue that once those materials were added they could not be removed solely for political, rather than pedagogical, reasons, as they allege occurred in this case.
This contention, however, is not correct. Public officials are generally entitled to change their minds about what is recommended or required to be taught in public school classrooms. The Supreme Court’s resolution of Board of Education v. Pico, 457 U.S. 853 (1982), on which plaintiffs rely, is not inconsistent with this conclusion. In Pico, five Justices voted to remand for further factual development a case in which plaintiffs claimed that controversial books were removed from the school for purely political or partisan reasons. However, no opinion commanded five votes and, therefore, Pico is not binding precedent even on the question of whether books can be removed from a school library for political reasons. Moreover, the four Justices who expressed the view that removing books from a library for political or partisan reasons would violate the First Amendment made a sharp distinction between what is available as optional reading in a library and what is taught in the classroom, where, they recognized, public officials could prescribe the curriculum. Since Pico was decided in 1982, the Supreme Court has explicitly held that when the state is the speaker it can decide the content of its message, and has stated that the curriculum of public schools is a fully protected form of state speech. See Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 833 (1995).
It appears that reference to the contra-genocide websites was added to the Curriculum Guide because of concerns expressed by the Turkish community. Viewed in the light most favorable to plaintiffs for the purpose of deciding the motion to dismiss, the court assumes that those references were later removed in response to “political pressure” that the Armenian community put on elected and appointed officials. This, however, is not unlawful.
Politics is not a pejorative term in our nation. Properly understood, politics is the essence of democracy. It is the way that a free and vigorous people make and then change public policy. With regard to what will be taught in public school classrooms, we rely on the power of the people to elect and, if they wish, change their representatives as the means to hold them accountable for decisions concerning the content of the curriculum. Except in limited circumstances not at issue here, this is not a role to be performed by United States judges in our federal form of government.
The facts of this case demonstrate that the plaintiffs and those who share their viewpoint concerning Armenians in the Ottoman Empire are fully capable of participating in the political process. It is in the political arena that they must seek the relief to which they are not entitled in federal court.