Alameda’s Lesson 9 has its day in court…and wins

The final judgment in the lawsuit against Lesson 9/Tolerance teaching in Alameda is out and the court doesn’t mince words. The District has prevailed! And what a smackdown of the petitioners it was.

Asked during the proceedings if the Plaintiffs would drop their suit if all 6 protected classes were explicitly included in the District’s anti-bullying efforts, Plaintiff’s attorney answered a non-equivocal “Yes!” News to many in the room, some of whom may be actually represented by the attorney.

The hearing began just after 9:45 this morning and ran about an hour and a half.

Kevin Snider, the Pacific Justice Institute’s General Counsel, spoke first and delved immediately into the meat of the case: Is Anti-bullying education a part of Health Education or not?

Judge Roesch quickly stepped in to ask a question that he would return to over and over again. If a hypothetical teacher presents the question “A nurse has 30 stethoscopes and gives 5 to a doctor, how many stethoscopes does the nurse have?” is that health education?

Answer: No because it doesn’t meet the criteria of the Health Education Code.

He rephrased it later as “A mother nurse has 30 stethoscopes and gives 5 to her brother, a doctor, how many stethoscopes does the nurse have?” now it’s dealing with both family and medicine, is it health ed?”

Judge asks: “You can “teach hate” and then its health education?” Following this with; “You can’t say I’m a bigot, so I don’t have to attend tolerance lessons!” This was the problem with the lawsuit; Snider appeared unable to argue that Lesson 9 constituted “health education.” He spoke in generalities about codes, etc, but never zeroed in on how it was health.

Snider spoke about the “false binary” and “false dichotomy” of the judge’s position, that something had to be either Health or Tolerance and went onto describe two overlapping circles, arguing that Lesson 9 was both, and therefore the Health ordinance should be adhered to. The judge replied “but you’ve created the overlap, the definition doesn’t insist that the two overlap,” essentially hitting a key point to be made later.

Snider switched to claim that the School District had conceded that the lesson was Health Ed because they did not refute it. Both the judge and the district read their brief which specifically stated that Lesson 9 is wholly Anti-bullying Education, which explicitly counters the claim that it’s Health Ed. (That one had to sting).

Snider moved to arguing that allowing parents to opt-out was not in conflict with anti-bulling code. Finally the judge clarified that the point was relatively moot, as Snider wasn’t arguing that it was required, which was the basis of the case. To which Snider replied that he was just establishing that it doesn’t conflict with Anti-Bullying sections of the Health Code.

Roesch then returned the discussion to “Why is it Health Ed?” saying the State Education guidelines are not specific on the issue and instead present broad, amorphous categories that you (Snider) can pull almost anything into, which is what you are doing.

Snider’s response was that he had done mathematical calculations that showed the district had a 1 in 91 chance of implementing the program as defined and that this somehow correlates directly to criminal court and “reasonable doubt.” An argument that no one else seemed to understand. The 1 in 91 comes from their filing, but I can’t find it, so maybe I’ll figure it out another time.

Then the PJI bombshell, something that I cannot believe was said out loud by the lawyer, “Lesson 9 puts one group above all others and therefore it’s indoctrination into LGBT lifestyles.” If there was any hope for this case, that line will probably be the end of it. The bald truth that the fight is not about fairness, or equality, or diversity, it’s about out and out hate and disgust. Indoctrination!

Snider then went on to mention the Richmond Gang Rape story, as proof that there are issues with gender tolerance, and stated “it’s sad that the school district is ignoring this.” WOW.

30 minutes in and it was Katherine Alberts, representing the School District, turn to respond.

She quickly pointed out that the opt-out in the Health Ed Code was once very broad, but had been narrowed in recent years, that the Legislature had specifically identified anti-bullying education needs and not placed them in Health Ed. Therefore, the opt-out is a “very limited right” and should be looked at with an eye to that.

Alberts then pointed out that Snider and the Plaintiffs were insisting on an incredibly broad reading of the Health Education Code and that by doing so, are essentially putting any lesson that mentions a family member into Health Ed and thus requiring an opt out notification for Art lessons, Storytime stories, Math and more. That since all anti-bullying education is on the same level (meaning all 6 protected classes have the same standing), the Plaintiff’s argument would lead to all anti-bullying lessons requiring an opt at.

Short and sweet.

Snider then began to argue that Lessons 1-8 do not explicitly deal with the five remaining protected classes and that Ruben Zepeda of the district had acknowledged that by starting a new process for adopting a curriculum that dealt more explicitly with the other 5 protected classes. The judge quickly pointed out that the attorney was arguing a different case, that they had not filed a lawsuit to demand equal treatment of all classes, but that they had filed a lawsuit to opt out of LGBT tolerance lessons adding “You are stretching.”

Snider came out with his Gay indoctrination theory again and Roesch responded: “It’s absurd that it’s indoctrination.” Going further to point out that the idea that the schools were teaching kids to be gay was not only ridiculous, but something that couldn’t possibly be done.

And as quickly as it started, it was over. “The tentative ruling stands.”

Next stop? Appeals court. After the case ended, Snider and entourage, which oddly included School Board member Trisha Herrara Spencer, left the courtroom saying “well that was an important step, it tells us where we need to focus our efforts next.”

5 comments for “Alameda’s Lesson 9 has its day in court…and wins

  1. Mickey Neill
    December 2, 2009 at 8:14 am

    Thanks Debra, for including this in faceboook. You might enjoy my editorial in the TS of Monday that talks about fundamenlist intolerance. Mickey

  2. jackie neill
    December 2, 2009 at 12:43 pm

    What ridiculous arguements against something that is meant to teach tolerance and non-bullying.

    Intolerance in the name of religion is sad and so are the people who promote it.

  3. Jennie Gray
    December 2, 2009 at 3:54 pm

    When is Trish Spencer up for re-election? She’s clearly bad news for kids.

  4. Michael Williams
    December 3, 2009 at 11:56 am

    It’s great to see these supportive comments. I hope you all can get to the School Board Meeting next Tuesday night 12/8 (or at least write to the School Board) to express your support for the strongest anti-bullying curriculum possible. There is a danger that the protections of Lesson 9 could be abandoned for more generic anti-bullying lessons that don’t empower teachers to deal with the ways specific minorities (including LGBT kids and families) get bullied.

    Specific question to Mickey: What is the “TS of Monday” and how can I access your article, which sounds interesting?

  5. Michael Williams
    December 3, 2009 at 12:05 pm

    Wait a minute! On second reading, I just saw the Trish Spencer angle! Aren’t there laws or at least rules around conflict of interest for a School Board member assisting a lawsuit against the District?

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