ACLU Propagates False Rumor About Gilbert School Board Member
Staci Burk On Facebook 11-10-14
This was my response to the ACLU letter (below);
On Monday, November 10, 2014 9:24 AM, Staci Griffin-Burk <email@example.com> wrote:
Good morning Ms. Lopez:
I hope that you are having a good day and that this communication finds you well.
I am writing to express disappointment in your email sent to the Governing Board on Sunday morning. The rumor that Board Member Smith would be going to one of our schools to redact textbooks was started by a parent that has regularly posted half-truths and assumptions on social media representing them as facts. Most people including our former Superintendents recognized this behavior early on and did not give credence to her assertions.
I am befuddled that a woman of your education, training and background would also assume that a social media posting was fact and without investigation believe it to be true and spend your weekend sending such an email to the Board. The assumption on its face is logically faulty. Why would Ms. Smith offer a motion to the Board in a public meeting directing administration to address the issue and return to the Board with a solution, if she intended on running out to her childrens school with a sharpie? That really makes no sense. It does make sense that some individuals would flippantly say "Watch Smith will be out at GCA with a sharpie doing redactions in no time, she'll be the first in line." It doesn't make sense that anyone would believe that to be fact, absent any evidence. Or even go so far as to look up criminal damage statutes on a weekend to cite it in a responsive email without first investigating the source and facts.
I am sure that you are aware that in the Montiero case in which you cited, that instance was a parent seeking injunctive relief asking that the Court remove books that she believed to be discriminatory from her childs classroom. Prior to the Court dismissing her action, she had removed her child from the freshman English course. According to the case, the District Court "dismissed as moot Monteiro's request for injunctive relief regarding removal of the literary works from particular English classes because Doe was no longer a member of the freshman English class and ruled that the case was not proper for class certification because of the absence of any showing that certification under Fed.R.Civ.P. 23 would be proper." The appeal to the 9th was on procedural grounds, not substance.
However, if we are pulling case citations, I would like to bring your attention to another citation that the 9th Circuit cited in the SAME Montiero case that you cited and that is this reference, "We approach this question in light of a number of considerations. The first is the threat to First Amendment freedoms posed by efforts to prevent school boards from assigning the reading of literary works on the ground that individuals or groups may find the contents injurious or offensive. The second is the broad discretion afforded school boards to establish curricula they believe to be appropriate to the educational needs of their students. The third is the awareness that words can hurt, particularly in the case of children, and that words of a racist nature can hurt especially severely." Monteiro v. Tempe Union High School District, 158 F.3d 1022, 1027 (9th Cir. 1998).
Additionally, the Supreme Court has addressed a number of times, the balancing of discretion in determining educational matters with a students' First Amendment rights. See, e.g., Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 268-69, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988) (holding that school board regulation of curriculum-related speech does not raise First Amendment concerns if regulation is "reasonably related to legitimate pedagogical concerns"); Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986).
In this instance, the Governing Board in consultation with legal counsel as well the legislator responsible for initiating the law, voted to enforce the the statutory requirement in compliance with the law. Ms. Lopez, you may disagree with ARS 15-115 on its face and that is fine. It is your prerogative. That is not a debate for the local school board. That is a debate you should have with your state level representation.
Finally, the US Supreme Court has recognized that school boards generally retain a broad discretion in managing school affairs, Kuhlmeier, 484 U.S. at 272, 108 S.Ct. 562; Pico, 457 U.S. at 864, 102 S.Ct. 2799 (agreeing with proposition that local school boards may establish and apply their curricula such a way as to transmit community values); see also Virgil v. School Bd. of Columbia County, Florida, 862 F.2d 1517, 1520 (11th Cir.1989) (reviewing cases). In Virgil v. School Bd. of Columbia County, the Court asserted "At the same time, the Supreme Court has held that the rights of students in public schools are not automatically coextensive with the rights of adults, Hazelwood, 484 U.S. at ___, 108 S.Ct. at 567, and has recognized the central role of public schools in transmitting values necessary to the development of an informed citizenry. Bethel School District No. 403 v. Fraser, 478 U.S. 675, 681-84, 106 S.Ct. 3159, 3164-65, 92 L.Ed.2d 549 (1986) (affirming that the essence of public education is "prepar[ing] pupils for citizenship in the Republic" through "inculcation of fundamental values"); Ambach v. Norwick, 441 U.S. 68, 76-77, 99 S.Ct. 1589, 1594, 60 L.Ed.2d 49 (1979) (noting "[t]he importance of public schools in the preparation of individuals for participation as citizens, and in the preservation of the values on which our society rests"); Board of Education v. Pico, 457 U.S. 853, 876, 102 S.Ct. 2799, 2813, 73 L.Ed.2d 435 (1982).In matters pertaining to the curriculum, educators have been accorded greater control over expression than they may enjoy in other spheres of activity. See Hazelwood School District v. Kuhlmeier, ___ U.S. ___, ___, 108 S.Ct. 562, 568-70, 98 L.Ed.2d 592 (1988) (upholding restriction of expression in school-sponsored student newspaper or in other activities which "may fairly be characterized as part of the school curriculum"). See also Board of Education v. Pico, 457 U.S. 853, 869, 102 S.Ct. 2799, 2809, 73 L.Ed.2d 435 (1982) (plurality opinion) (indicating that broad school board discretion in matters of curriculum may be defended by reliance upon school board's duty to inculcate community values); Pratt v. Independent School District, 670 F.2d 771, 775 (8th Cir.1982) (school board's "comprehensive powers and substantial discretion" include "the authority to determine the curriculum that is most suitable for students and the teaching methods that are to be employed, including the educational tools to be used")."
I appreciate your time and consideration and please feel free to contact me at 480-343-4518 if I can be of any further assistance.
Gilbert Public Schools
140 South Gilbert Road
Gilbert, Arizona 85296
From: Victoria Lopez
Dear Superintendent Kishimoto:
The ACLU of Arizona has been informed by parents of students in your district that Gilbert School Board member Julie Smith may be planning to appear at Gilbert Classical Academy on Monday in order to redact biology textbooks. This would be a destruction of school property in violation of Arizona law and a violation of students’ free speech rights under the First Amendment to the U.S. Constitution. We urge you to prevent these unlawful acts.
First, redaction by school board members without authorization of the Gilbert Public Schools administration would constitute criminal damage to property. On October 28, 2014, the Gilbert School Board approved the following motion, made by Ms. Smith: “I move that this governing board direct administration to redact all references of abortion in any furnished materials given to students as part of any instruction in Gilbert Public Schools that does not give preference, encouragement and support to childbirth and adoption in the same furnished material in order for the district to be in compliance with A.R.S. § 15-155 [emphasis added]. Administration is to provide an update to the board at the Nov. 18, 2014, meeting with details of a plan of implementation.” This motion does not authorize members of the Gilbert School Board to perform the redactions; it authorizes the administration of Gilbert Public Schools to direct the redaction. Any unauthorized redaction of textbooks by school board members would constitute criminal damage of property, just as it would constitute criminal damage for any unauthorized member of the public to walk into a public school and start ripping up textbooks. See A.R.S. § 13-1602(A) (“A person commits criminal damage by: (1) Recklessly defacing or damaging property of another person.”). Depending on the value of the property—here, the number of textbooks defaced—criminal damage is either a felony or a misdemeanor. See A.R.S. § 13-1602(B).
Second, as stated in our October 14, 2014, letter to you, any act to enforce the Gilbert School Board’s vote on October 28, 2014, will constitute a violation of the First Amendment, subjecting Gilbert Public Schools and individuals effecting the redaction to civil liability. The Ninth Circuit Court of Appeals has firmly stated “we have no hesitation concluding . . . that a student’s First Amendment rights are infringed when books that have been determined by the school district to have legitimate educational value are removed from a mandatory reading list because of threats of damages, lawsuits, or other forms of retaliation.” Monteiro v. Tempe Union High School District, 158 F.3d 1022, 1027 (9th Cir. 1998). That is because of the “well-established rule that the right to receive information is an inherent corollary of the rights of free speech and press,” and because students have a right “to receive a broad range of information so that they can freely form their own thoughts.” Id. at 1027 n.5. The First Amendment protects Gilbert students from censorship that, in the U.S. Supreme Court’s words, would “cast a pall of orthodoxy over the classroom.” Keyishian v. Bd. of Regents of Univ. of State of N. Y., 385 U.S. 589, 603 (1967).
We have also heard from parents that Ms. Smith may be contemplating photographing the students with their books after they have been censored. Any attempt to photograph students with censored material is improper, unnecessary to keep track of the censored books and could be threatening to the students. Utilizing students to tacitly support the political and sectarian views of a Gilbert School Board member may also subject the district to further legal action. The Gilbert Public Schools administration should step in and prevent such photography from taking place.
Finally, because taking steps to censor academic material is an issue of great public interest with significant legal ramifications, we insist that the public be given notice in advance of any actions by the board or district related to the censorship of material from any portion of the district’s curriculum.
We hope that you will dissuade Ms. Smith, and any other board members or members of the public, from taking hasty action in violation of Arizona criminal law and the U.S. Constitution.
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