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A panel of the 1st U.S. Circuit Court of Appeals grilled a lawyer about his clients’ standing to bring First Amendment claims against Massachusetts state educational agencies and officials for removing from a teacher curriculum guide Web sites that dispute the existence of an Armenian genocide. Harvey Silverglate, of counsel to Boston’s Zalkind Rodriguez Lunt & Duncan, represented a group of Massachusetts students and teachers and the nonprofit Assembly of Turkish American Associations on the plaintiffs’ side of Griswold v. Driscoll at the hearing on Tuesday. The plaintiffs claim the state board of education’s 1999 decision to remove materials disputing the Armenian genocide from a curriculum guide violated the First Amendment’s free speech clause. They filed suit in the District of Massachusetts on Oct. 26, 2005, and the court dismissed the case on June 10, 2009. With regard to the Assembly of Turkish American Associations, the lower court ruled that the lawsuit was time-barred by the three-year statute of limitations and there was no continuing violation of constitutional rights that extended the statute of limitations. With regard to the individual plaintiffs, the district court addressed the merits of the case in finding that they lacked standing. Specifically, Chief Judge Mark Wolf wrote: “Plaintiffs seek to escape the consequences of the general principle that government speech is immune from First Amendment scrutiny by emphasizing that the instant case allegedly involves the removal of contra-genocide materials from the Curriculum Guide as a result of political pressure. They assert that this case is analogous to [the U.S. Supreme Court decision in Board of Education Trustees Island Trees Union Free School District No. 26 v. Pico] and, therefore, that they have stated a valid claim. Plaintiffs’ reliance on Pico is, however, unpersuasive for several reasons.” At the 1st Circuit oral argument, Silverglate and the judges debated his case’s similarity to the 1982 Supreme Court decision in Pico. In that case, a plurality of the Supreme Court deemed that the removal of nine books chosen by professional educators from school library shelves because of their controversial viewpoints violated the First Amendment. When Silverglate argued that his clients had the same standing as the plaintiffs in Pico, retired U.S. Supreme Court Justice David Souter told him “that may get you nothing more than a remand for factual development.” Silverglate replied “the case is controlled in every material respect by Pico.” “There’s no question that the online library here was made ultimately for the benefit of the students via the teacher, just like in Pico,” Silverglate said. Circuit Judge Jeffrey Howard wanted to know how the students were being injured, given that the curriculum guide was voluntary. Silverglate responded that the plaintiffs were similarly situated to the students in Pico, in that “they were in the realm of voluntary inquiry.” Circuit Judge Michael Boudin told Silverglate that the circumstances of his case and the Pico case are very different. “Taking books off library shelves seems a little different than deciding what goes into a curriculum package,” Boudin said. Under questioning by Souter, Silverglate agreed that Massachusetts could constitutionally limit curriculum materials only to those avowing the existence of the Armenian genocide. Silverglate said it was the decision to bow to political pressure and remove the materials once they were included that violated the plaintiffs’ constitutional rights. Massachusetts Assistant Attorney General William Porter, who argued the case for the defendants, opened by asserting that the plaintiffs do not have standing to bring the claim because the curriculum guide is “a series of recommendations” to educators. “It does not compel the speech of any teacher or student,” Porter said. Porter also said the curriculum changes made because of political influences were within the rights of the state’s educators. “The curriculum guide is government speech, and the government is free to identify the analysis it intended to convey and change it,” Porter said. Porter said that there’s no comparison between the removal of two or three pages in the curriculum guide and the activity Pico protected. He further argued that subsequent Supreme Court decisions, such as the 2003 ruling in U.S. v. American Library Assoc. Inc., left Pico behind. That ruling rejected a First Amendment challenge to a federal law that bars public libraries from getting federal funds for Internet access unless they install pornography-blocking software. “The court upheld a requirement that federal funds require libraries to use Internet-filtering software,” Porter said. “The court found libraries had wide latitude.”

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