Mass. Appeals Court Hears Genocide Ed. Argument

March 10, 2010

by

The Armenian Mirror-Spectator

56

By Thomas C. Nash
Special to the Mirror-Spectator

BOSTON — Nearly five years after the Assembly of Turkish American Associations (ATAA) first filed a lawsuit challenging the teaching of the Armenian Genocide in Massachusetts classrooms, well-known First Amendment attorney Harvey Silverglate argued before an appeals court last week that not including material denying it occurred violated the students’ rights.

The appeal follows US District Court Chief Judge Mark L. Wolf’s dismissal of the case last June. Wolf’s ruling largely focused on the argument that curricula represent protected government speech.

Silverglate, who filed an appeal shortly after Wolf’s ruling, argued March 2 before the US First Circuit Court of Appeals that the reasoning behind the dismissal ignored the fact that other dark areas of history included in the guide, such as the Irish Potato Famine, included multiple points of view on how they happened.

“[Students] were deprived of two sides of a controversy …whereas in all other areas the guide contained multiple points of views,” Silverglate said. “They didn’t even know about [other views] until they heard it from their teachers.”

The suit, filed in October 2005, includes the ATAA alongside two high school teachers and a student as plaintiffs.

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The curriculum guide in question was issued in 1999, following legislation from state Sen. Steven Tolman, and does not forbid teachers from discussing other points of view. A list of “contra-genocide” sources, however, was removed after Tolman learned it had been inserted.

The three judges on the panel, which included retired US Supreme Court Justice David Souter, asked both sides to clarify what role they believe the courts should play in debates over what gets taught in schools.

“I thought the teachers don’t have to use this guide,’’ Souter said during Silverglate’s argument. “So how are the students injured?’’

Silverglate maintained the initial ruling was an assertion that courts had the right to remove material from libraries, using a 1982 book banning case as precedent. Judge Michael Boudin appeared to not agree with the assertion.

“When we start policing what goes into the curriculum,” Boudin told Silverglate, “it’s like us saying what could go into the library, not what gets taken out.”

Arguing for the Massachusetts Board of Education, Assistant Attorney General William W. Porter also refuted Silverglate’s claim that the department’s position resembled book banning.

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“The classrooms are entirely free and open,” Porter said. “What we have here is the plaintiffs not persuading the Board of Education to include their preferred material.”

The Armenian Assembly of America, in its second amicus brief filed regarding the case, reiterated the argument that the state is entitled to promote viewpoints in the classroom despite the plaintiffs’ claim that First Amendment rights are being violated.
“But by this argument any parent who objects to the views taught in any course has an injury sufficient for standing,” the brief states. “Parents who deny the Holocaust would have standing to object to the teaching of the Holocaust; parents who support the war in Afghanistan could sue teachers who express criticism of it.

“No court in the country ever has recognized a First Amendment injury from having curriculum or a curriculum guide advance a particular viewpoint (other than based on the Establishment Clause). Yet that is the only injury asserted by plaintiffs.”

Armenian Assembly of America Board of Trustees President Carolyn Mugar, who attended the hearing, applauded Assistant General Attorney Porter for speaking forcefully in defense of the department of education’s rights and duties for teaching history accurately and responsibly. “What could be more important than teaching about human rights and the value of tolerance?” asked Mugar. “The historic examples of genocide stand as warnings to all future generations about the critical need to confront the hatreds that threaten to undo efforts at peaceful co-existence. I am particularly proud of the record of the state of Massachusetts for setting and defending standards for the teaching for human rights in public schools.”

Also attending the hearings were Arnold R. Rosenfeld of K&L Gates LLP, Anthony Barsamian and Van Z. Krikorian of the Armenian Assembly; Mark Mamigonian of the National Association for Armenian Studies and Research and Sonya Nersessian and Mark Fleming of the Armenian Bar Association.

Rosenfeld, who along with Duke University School of Law Prof. Erwin Chemerinsky, and Krikorian filed amicus briefs on behalf of Armenian Genocide survivors, descendants of survivors and the Armenian Assembly, stated after the oral argument that he “heard no legal or factual arguments presented by the plaintiffs that would justify the Appeals Court overruling Chief Judge Wolf’s well written opinion that the case should be dismissed.”

A ruling on whether the appeal can go forward is expected in the coming months.

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