Posted by Eugene Volokh:
No First Amendment Problem With Excluding Turkey-Friendly Materials from an
Armenian Genocide Curriculum:
http://volokh.com/archives/archive_2009_06_14-2009_06_20.shtml#1245106017
An eminently predictable result under current First Amendment law
([1]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):
([2]Show more details.)
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).
([3]Hide most of the above.)
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.
References
1.
http://pacer.mad.uscourts.gov/dc/opinions/wolf/pdf/griswold%20opinion%20june%2010%202009.pdf
2. file://localhost/var/www/powerblogs/volokh/posts/1245106017.html
3. file://localhost/var/www/powerblogs/volokh/posts/1245106017.html
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