Intersection of Law and Policy: Curriculum Accuracy --- What's in a Word?
From Of Counsel Vol. 4, No. 2
By Hayley Gorenberg, Deputy Legal Director
Published 03/27/08
My breakfast conversation with my eight- and six-year-olds had turned to thumbs. How did we grow them? This question led to evolution, and the news nugget that my home state of Florida has this year for the very first time passed school science standards that permit replacing code phrases like "biological change over time" with the word evolution. My older daughter didn't miss a beat: "But who would go to court over using one word?"
And yet one of our most recent wins for LGBTQ students involved just that. Eight decades after the Scopes Monkey Trial, a coalition of "ex-gay" groups has finally decided to accept their string of administrative and court losses and relinquish their challenge to the Maryland County School Board's comprehensive health curriculum. Students rather than judges will now hear about a curriculum that covers the facts about sexual orientation. But they may never know the melee that opponents launched using the excuse of a specific word.
The antigay groups argued that state law required the curriculum to be factually accurate, and that a reference to the term "innate" to explain sexual orientation inadequately conveyed the origins of sexual orientation — all to prop up their medically unsupported idea that gay people can be turned straight. In court papers they conflated the term "innate" with the term "immutable" (the latter used in discrimination analyses to refer to classifications by characteristics that trigger additional scrutiny). The curricular opponents then leaped to the Maryland Court of Appeals' notation in Conaway v. Deane that its decision in that marriage equality case was not premised on a finding that sexual orientation was immutable.
True enough, but also misleading. For one thing, the Conaway court did not reach a conclusion regarding whether orientation is "immutable"; rather, it refused to take judicial notice of the proposition that orientation is immutable, which would have triggered enhanced scrutiny in the context of discrimination. Furthermore, Maryland actually does not require that curricula be factually accurate, so (ironically) we — supporters of an accurate and comprehensive curriculum that had undergone professional medical review — pointed out that a requirement of factual accuracy was not present in law. We could then use that legal truth to help shield a fine curriculum from a highly questionable assault premised upon interpretations of the word "innate."
The antigay groups also picked at bits of state law like the prohibition on promoting "erotic techniques" within a curriculum, and (vainly, in the end) championed that prohibition to attack a condom demonstration video and a reference within the curriculum to anal sex. They argued that discussing nonprocreative acts in the curriculum constituted promotion of "erotic techniques."
It was the first time I had consulted a dictionary to define the word erotic in the course of my casework. I was particularly struck that the curriculum's opponents, in leaving other sexual references alone, in effect promoted unsafe sex by singling out the condom demonstration within the overall curriculum. Never mind that those of us who have worked for decades in the fight against HIV would view a significant part of the prevention battle won if there were global agreement that condom use is "erotic."
A few data points, from the local to the national: First, on the local front, let me note that right next door to Montgomery County, the District of Columbia Board of Education recently passed comprehensive curricular standards for health classes in the district. The board heard Lambda Legal's analysis about its right to pass curricular standards and testimony from a raft of public health, pediatric, and adolescent health experts in favor of fact-based and inclusive instruction from the earliest grades through graduation. Then, on the national front, contemplate the sobering revelation this month that about one-quarter of American girls have contracted a sexually transmitted disease by age 19.
Our young people's very lives cry out for the facts that will allow them to protect their health and well-being. School leaders in Montgomery County and the neighboring District of Columbia have heard the call and responded. Let this battle of words in the courtroom pave the way for truth in the classroom, for the good of all our children.
