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The U.S. Court of Appeals for the 1st Circuit recently ruled that a Massachusetts education agency’s decision to remove materials disputing the existence of an Armenian genocide from a curriculum guide did not violate the First Amendment. On Aug. 11, a unanimous panel in Griswold v. Driscoll affirmed the agency’s decision, which dates back to 1999. A group of Massachusetts students and teachers and the nonprofit Assembly of Turkish American Associations sued Massachusetts state educational agencies and officials over the decision in 2005. Retired U.S. Supreme Court Justice David Souter, who sat on the 1st Circuit panel by designation, wrote the opinion. “The appellants’ argument, if adopted, might actually have the effect of foreclosing future opportunities for open enquiry in the classroom,” wrote Souter. “A ruling in their favor might induce school boards to limit the permissible materials for teaching any subject likely to generate heat, simply to foreclose suits under [the 1982 Supreme Court ruling in] Pico when they modified references or specifications later.” In Board of Education Trustees Island Trees Union Free School District No. 26 v. Pico, a U.S. Supreme Court plurality ruled that the decision to remove nine books from school library shelves because they espoused controversial viewpoints violated the First Amendment. Professional educators selected the nine books to be removed in the Pico case. Souter’s ruling went on to distinguish Griswold from Pico. “[A] non-exclusive guide to teachers does not resemble a covert library whose shelves limit how far its intended student patrons can range around on their own, and there is no apparent reason to treat the Guide’s open-ended character as entailing a limit on the Commonwealth’s discretion to modify it,” Souter wrote. Souter also embraced the defendant’s argument, that the guide “is an element of the curriculum itself.” He rejected the plaintiffs’ contention that the guide is a kind of “a virtual school library established for the benefit of students as well as teachers. “The fact that students also have access to the Guide and may use it as a resource on their own does not make it any less part of the curriculum,” Souter wrote. “In fact, as the Guide points out, all Massachusetts curricular frameworks are on the Department of Education’s website.” The opinion is “largely a cop-out because the notion that this guide was curriculum was totally off the wall,” said the plaintiffs’ lawyer, Harvey Silverglate, of counsel to Boston’s Zalkind Rodriguez Lunt & Duncan. Silverglate said the guide was “a huge volume of materials from which students and teachers and departmental chairmen could pick and choose or even ignore any of these resources in putting together teaching materials for the class.” He said the opinion attempted to shoehorn the guide into the definition of curriculum, but the collection of materials is more like a “modern-day library.” “Once a decision is made by professionals to include it, there has to be a good reason to exclude it, and political pressure is not a good reason,” Silverglate said. “It exposes school authorities increasingly to political pressures on education, which is very bad.” The Massachusetts Office of the Attorney General, which represented the defendants in the case, referred questions to the Massachusetts Department of Elementary and Secondary Education. The education agency did not return calls for comment. In June 2009, Chief Judge Mark Wolf of the District of Massachusetts dismissed the lower court case. Wolf ruled that the Assembly of Turkish American Associations’ claims were time-barred by the three-year statute of limitations. He also ruled that there was no continuing violation of constitutional rights to extend the statute of limitations. The court further found the individual plaintiffs lacked standing for their claims under Pico.

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