Order Denying Petitions' Petition for Writ of Mandamus in Balde v. Alameda Unified School Dist., No....
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Transcript of Order Denying Petitions' Petition for Writ of Mandamus in Balde v. Alameda Unified School Dist., No....
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Safe School Curriculum--Lesson 9, also known as the Caring School Community
supplement, Lesson 9 for the 2009-2010 school year, as well as subsequent school years as
per Ed ucation C ode section 51240 or to show cause before this Court they have not don e
and wh y a peremptory writ should not issue is D EN IED .
Initially, the Court construes the motion as a motion for issuance of a peremptory
writ, rather than an alternative writ. Both Petitioners and District appear to be seeking a
rang on the merits at this time, the matter has been fully briefed, and the Court's interest in
efficient resolution of d isputes coupled w ith the interests of the parties in prompt resoluti
of the ongoing dispute all favor a ruling on the merits of the case. See Code of Civil
Procedure section 1088, 1105; Lewis v. Superior Court (1999) 19 Ca1.4th 1232, 1240.
Petitioners allege in their verified First Amended Petition that they are parents of
children enrolled in a school within the jurisdiction of the Alameda Unified School District
during the 2009-2010 school year. The Court finds that Petitioners have standing to bring
this action. Assuming, as District contends, that several Petitioners lack standing, there is
no showing none of the Petitioners have standing.
On May 26, 2009, the District adopted the Safe School Community Curriculum--
Lesson 9, also known as the Caring School Community supplement, Lesson 9 (hereafter
"Lesson 9") for the 2009-2010 school year. The purpose of the curriculum is to teach safety
and tolerance on school campuses in accordance with the Student Safety and Violence
Prevention Act of 2000, and to prevent bullying and harassment pursuant to District polic
Education C ode section 200, an d P enal Code section 422.6(a).
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Petitioners have given written notice, by letters dated June 13, 2009, of their desire
for their children to opt out of instruction under Lesson 9. Petitioners argue that Lesson 9
constitutes instruction in health education. Petitioners rely on Education Code section
51240, which provides that if any part of a school's instruction in health conflicts with the
religious training and beliefs of a parent or guardian of a pupil, the pupil, upon written
request of the parent or guardian, shall be excused from the part of the instruction that
conflicts with the religious training or beliefs. Petitioners all assert that Lesson 9 constitutes
instruction in health that con flicts with their religious training and beliefs and personal m
convictions. There is no dispute, and the Court agrees, that when section 51240 is
applicable, a school district has a mandatory duty to allow parents to have their children
excused from health instruction.
D istrict has given notice that P etitioners' demand to opt out of instruction pursuant
Lesson 9 is denied, because District's Board did not include an opt out option when it
approved Lesson 9.
Petitioners reason that Lesson 9 clearly constitutes instruction in health, within the
opt out clause in Education Code section 51240, because the Lesson 9 curriculum for
kindergarten through Grade 5 is within the parameters of health instruction in California
Public Schools. Petitioners contend that those parameters have been established by the
Health Education Content Standards for California Public Schools, Kindergarten Through
Grade Twelve (hereafter "Health Ed Content Standards"), adopted by the California State
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Department of Education. Petitioners contend that the Health Ed Content Standards were
adopted pursuant to Education Code section 51210.8, which requires the State Board of
Education to adopt standards for the instruction of health education in California Public
Schools. Petitioners point to language in the Health Ed Content Standards for kindergarten
through fifth grade and argue that it is similar in nature to language in the curriculum for
Lesson 9 applicable to kindergarten through fifth grade, respectively.
District contends that Lesson 9 was adopted pursuant to the policy of the State of
California, as expressed in Education Code section 200, et seq., to provide all students,
regardless of actual or perceived sexual orientation or gender identity, equal rights and
opportunities in public schools. District also points to District Board Policy 5143.3
Nondiscrimination/Harassment. Petitioners concede in their First Amended Verified Petiti
that the purported purpose of the Lesson 9 curriculum is to teach safety and tolerance on
school campuses in accordance with the Student Safety and Violence Prevention Act of
2000, and to prevent bullying and harassment pursuant to D istrict Board P olicies, Educa
Code section 200, and Penal C ode section 422.6(a).
D istrict contends that the Legislature did no t intend, when it enacted E ducation Co
section 51240 in 2004, to include matters such as Lesson 9 within the phrase "a school's
instruction in health," in order to allow pa rents to exercise opt out rights with regard to s
curriculum.
The Court finds that the Health Ed Content Standards are not intended to define the
parameters of the phrase "a school's instruction in health" in connection with the opt out
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provision in Education Code section 51240. First, nothing in Education Code section
51210.8 explicitly states that the content standards in the curriculum area of health educ
will define the opt out rights of parents under section 51240. Second, prior to 2003, section
51240 allowed parents to opt out of instruction in "health, family life education, and sexual
education?." Thereafter, section 51240 was repealed, but an opt out provision for "sexual
education" was included in Education Code section 51938. When section 51240 was re-
enacted in 2004, it included an opt out provision only for "health" education. The Health
Ed Content Standards were not enacted until 2008. In addition, at the time section 51240
was re-enacted, Education Code section 51202 provided for instruction at the appropriate
elementary and secondary grade levels and subject areas in "personal and public safety and
accident prevention," but did not include within its description of such instruction any
mention of family health education. The Court concludes that the opt out provision in
section 51240 in not reasonably construed to include instruction in family life education,
was intended to be more limited in scope, and that the L egislature did n ot intend when it
enacted section 51240 to d efine the scope of health education by reference to the H ealth
Content Standa rds that were contemplated for adoption in the future.
The Court also finds that the opt out provision in Education Code section 51240 is
not applicable even if the Health Ed Content Standards define the scope of the phrase
"instruction in health." Petitioners' contention that Lesson 9 constitutes instruction in hea
creates a conflict between the policies underlying section 51240 and the policies that sup
Education Code section 200 et seq., including section 233, which specifically contemplate
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adoption of policies, guidelines, and curriculum designed to discourage discriminatory
practices and attitudes and acts of hate violence in public schools. Those statutes do not
include opt out rights, and the Court finds that the inclusion of an opt out right would
weaken the implementation of those policies by school districts. The Court finds that
measures designed to prevent or discourage discrimination and harassment based on a
protected characteristic, and consistent with anti-discrimination/harassment policies created
by state law, are entitled to substantial deference. The Court will not require a school
district to enact procedures that weaken anti-discrimination and anti-harassment measures
absent a compelling showing of legislative intent to require school districts to do so. Finally,
the Court must attempt, if possible, to harmonize the policies underlying these statutes, if
possible, in a manner that does the least damage to the letter and spirit of each.
The Court finds that on the evidence presented here, Lesson 9 cannot be construed as
instruction in health, so as to trigger the opt out rights of Petitioners, because its primary
thrust is to provide instruction to prevent discrimination and harassment of students based on
the perceived or actual sexual orientation of the students or their families. To the extent that
Lesson 9 includes instruction that might be characterized as health instruction, that crossover
is essentially unavoidable and incidental, since instruction designed to foster tolerance of
lesbian, gay, bisexual and transgender ("LGBT'') families must necessarily include
discussion of issues relating to families. This is apparent from a comparison of the Lesson 9
curriculum for each grade from kindergarten to fifth grade, and the sections of the Health Ed
Content Standards applicable to each grade level that are referenced by Petitioners.
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With regard to the kindergarten portion of Lesson 9 curriculum, Petitioners do not
show or even argue that any portion of the curriculum is within the Health Ed Content
Standards for kindergarten.
The H ealth E d Con tent Standards for first grade include: "Describe how mem bers
a family have various roles, responsibilities, and individual needs." Petitioners contend that
this is encompassed within the Lesson 9 curriculum for first grade, which has, as its purp
to identify what makes a family, to identify and describe a variety of families, and to
understand that families have some similarities and differences. The purpose, focus, and
content of Lesson 9 for first grade is clearly distinct from the Health Ed Content Standards
for first grade, and is focused on understanding and identifying the differences between
families, rather than the various roles, responsibilities and needs of individual members.
The policies supporting anti-discrimination and anti-harassment instruction outweigh any
opt out rights under Education Code section 51240 with regard to the Lesson 9 curriculum
for first grade.
The Health Ed Content Standards for Grade Two include discussing how to show
respect for similarities and differences between and among individuals and groups. The
purpose of the Lesson 9 curriculum for second grade is to be able to identify alternative
types of family structures and to understand that all families have similarities in that they
love and care for their young. The purpose and content of the Lesson 9 curriculum for
second grade concerns identification, understanding, and tolerance of alternative family
structures. This is distinct from the purpose of H ealth E d C ontent Standards for Grade T
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and the similarities in subject matter are unavoidable. Based on the distinct purpose and
content of the Lesson 9 curriculum, the Court finds that the policies supporting anti-
discrimination and anti-harassment instruction outweigh any opt out rights under Education
Code section 51240 with regard to the Lesson 9 curriculum for second grade.
The Health Ed Content Standards for third grade include "Demonstrate the ability to
support and respect people with differences." The Lesson 9 materials for third grade have
an almost entirely different content and focus, and are designed to educate students about
family diversity and to create sensitivity to gay and lesbian family structures. The Court
concludes that any opt out right with regard to the Lesson 9 curriculum for third grade is
outweighed by the policies against discrimination and harassment of students from LGBT
families.
The Health Ed Content Standards for fourth grade include "Examine the effects of
bullying and harassment on others." The Lesson 9 materials are focused on preventing
bullying and harassment based on LGBT family structure. To the extent that there is some
incidental overlap with the Health Ed Content Standards for fourth grade, the State policies
against discrimination and harassment of students based on the structure of their families
outweigh any opt out rights that might otherwise be available under Education Code section
51240.
The Health Ed Content Standards for fifth grade include "Recognize that there are
individual differences in growth and development, physical appearance, and gender roles."
The Lesson 9 curriculum is focused on understanding and discouraging stereotypes about
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LG BT people. An y overlap between Lesson 9 and the Health Ed C ontent Standards for f
grade is incidental, at best. The state policies in favor of equal rights and opportunities in
education institutions of the state, and against discrimination and harassment of persons
based on sexual orientation, outweigh any opt out rights that might otherwise be available
under Education Code section 51240.
Thus, contrary to Petitioners' assertions, the Lesson 9 curriculum does not closely.
track the Health Ed Content Standards on a grade-by-grade basis. The Lesson 9 curriculum
has a distinct and focused purpose tied to preventing discrimination against young students
based on the L G BT structures of their families, and any overlap with the Health Ed Con
Standards is not significant and does not support Petitioners' claimed right to opt out of
instruction for their children in the Lesson 9 curriculum.
Finally, the Court agrees with District that Petitioners' position would expand the
scope of the opt out right wider Education Code section 51240 to include any anti-
discrimination or anti-harassment instruction that deals with families or tolerance of per
with differences. The result would be that parents who object to instruction in tolerance of
individuals or families of other races or of mixed races, of persons with disabilities, or of
persons or families of other races, ethnicity, or religion, would have the right to have their
children excused from instruction on those topics. This result could not have been
contemplated by the Legislature, since it substantially hinders the ability of schools to
implement C alifornia's policy under E ducation Cod e section 233 to provide equal rights
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opportunities in public schools to all persons, regardless of sexual orientation, disability,
gender, nationality, race or ethnicity, or religion.
Petitioners' request for judicial notice is GRANTED, including the request for
judicial notice of the Health E d C ontent Standards.
District's opposition was timely filed and served. It was filed 9 court days before the
hearing and was served by a means calculated to ensure receipt the next business day. Code
of Civil Procedure section 1005(b), (c).
District's request for judicial notice is GRANTED, except for the request for judicial
notice that former State Senator Sheila Kuehl was the first openly gay person elected to the
California Legislature, which is DE NIE D .
Petitioners' request for judicial notice is GRA NT ED .
Petitioners' request to introduce oral testimony is D EN IED . District has not taken th
position that the case is moot because Lesson 9 has already been taught. In addition,
Petitioners have already offered declarations stating that Lesson 9 has not been taught to at
least some of their children. For that reason, there is need for oral testimony to show that
Lesson 9 h as not been taugh t to some of D istrict's students.
District's request for a continuance is DENIED The matter has been fully briefed,
the dispute is ongoing, and there is no showing that the issues in this case will necessarily be
mooted by the decision of District's Board on December 8, 2009. The Court's ruling may
also be relevant to the outcome of the D ecember 8, 2009 m eeting.
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e e,ss% /4
Dated: December I, 2009
District's request that five Petitioners be dismissed with prejudice is DENIED. There
is no need for the Court to rule on this issue, since District does not prove or contend that
none of the Petitioners has standing.
THEREFORE, IT IS HEREBY ORDERED that Petitioners' Petition for Writ of
Mandamus against Respondent ALAMEDA UNIFIED SCHOOL DISTRICT and its
Superintendent, KIRSTEN VITAL, in her official capacity, is DENIED.
JUDGMENT may be entered against PETITIONERS and in favor of
RESPONDENTS' ALAMEDA UNIFIED SCHOOL DISTRICT and its Superintendent,
KIRSTEN VITAL, in her official capacity. Respondents are awarded costs of suit against
Petitioners pursuant to Code of Civil Procedure section 1032.
FRANK ROESCHJUDGE OF THE SUPERIOR COURT
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CLERK'S DECLARATION OF MAILING
I certify that I am not a party to this cause and that on the d ate stated below I caused a truecopy of the foregoing ORD ER D ENY ING PE TITIONERS' PETITION FO R W RIT OFMANDAMUS AND JUDGMENT to be mailed first class, postage pre paid, in a sealed
envelope to the persons hereto, addressedas follows:
Kevin T. Sn ider, Esq.Pacific Justin Institute212 9t h Street, Suite 208Oakland, CA 94607
Katherine Alberts, Esq.Stubbs & Leone
2175 N. C alifornia Blvd., Suite 900Walnut Creek, CA 94596
I declare under penalty of perjury that the same is true and correct.Executed on December 2009.
,7"
By:Vicki Daybell, beputy ClerkDepartment 31