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BOSTON — �The 1st U.S. Circuit Court of Appeals has rejected U.S. Constitutional challenges to a Massachusetts school district’s refusal to let parents exempt their children from instruction on or access to books that portray same gender parents as a type of diverse family. The plaintiffs are two sets of parents whose children were in classes that either used, or had access to, the books in kindergarten, first and second grade in the Lexington, Mass., school district. The plaintiffs’ case said they did not receive prior notice about the instruction and were not given an opportunity to have their children excused. The parents claimed that the school district violated their familes’ right to the free exercise of religion under the First Amendment and the parents 14th Amendment due process right to parental autonomy. They also claimed the school district violated the state’s opt out law which requires parental notice and the option to exclude their children from teachings involving human sexuality. Parker v. Hurley, No. 07-1528 (1st Cir.) The plaintiffs sought a declaration of their constitutional rights, damages and a three-pronged injunction. The parents asked the court to require the school take the following steps: to give parents the choice of whether their children will participate in school teachings or discussions that intend “to have children accept the validity of, embrace, affirm, or celebrate views of human sexuality, gender identity, and marriage constructs”; to allow parents to observe these kinds of classroom discussions; and to not give students any “materials graphically depicting homosexual physical contact,” before the seventh grade. On a de novo review, the 1st Circuit upheld the lower courts dismissal and ruled that the due process right of parental autonomy does not give the families the degree of control over the school district sought by their claims. The court also ruled that occasional school exposure to a concept that offends parents’ religious beliefs doesn’t hamper parental teaching about their family’s beliefs. “If the school system has been insufficiently sensitive to such religious beliefs, the plaintiffs may seek recourse to the normal political processes for change in the town and state,” Circuit Judge Sandra Lynch. “They are not entitled to a federal judicial remedy under the U.S. Constitution.” Like the district court, which dismissed on Feb. 23 in Parker v. Hurley, No. 06-10751 (D. Mass.), the 1st Circuit also dismissed the state claims without prejudice so that the plaintiffs can purse a state court case. Plaintiffs’ attorney Robert S. Sinsheimer, a Boston-based attorney at Denner Pellegrino, said his clients are disappointed in the outcome and considering refiling the case in state court.

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