Parker v. Hurley, No. 07-1528.

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtLynch
Citation514 F.3d 87
PartiesDavid PARKER; Tonia Parker; Joshua Parker; Jacob Parker; Joseph Robert Wirthlin; Robin Wirthlin; Joseph Robert Wirthlin, Jr., Plaintiffs, Appellants, v. William HURLEY; Paul B. Ash; Helen Lutton; Thomas R. Diaz; Olga Guttag; Scott Burson; Andre Ravenelle;, Joni Jay; Jennifer Wolfrum; Heather Kramer; Town of Lexington; Thomas Griffith, Defendants, Appellees.
Docket NumberNo. 07-1528.
Decision Date31 January 2008
514 F.3d 87
David PARKER; Tonia Parker; Joshua Parker; Jacob Parker; Joseph Robert Wirthlin; Robin Wirthlin; Joseph Robert Wirthlin, Jr., Plaintiffs, Appellants,
v.
William HURLEY; Paul B. Ash; Helen Lutton; Thomas R. Diaz; Olga Guttag; Scott Burson; Andre Ravenelle;, Joni Jay; Jennifer Wolfrum; Heather Kramer; Town of Lexington; Thomas Griffith, Defendants, Appellees.
No. 07-1528.
United States Court of Appeals, First Circuit.
Heard December 5, 2007.
Decided January 31, 2008.

[514 F.3d 89]

Robert S. Sinsheimer with whom Jeffrey A. Denner, Neil Tassel, and Denner Pellegrino, LLP, were on brief for appellants.

John J. Davis with whom Pierce, Davis & Perritano, LLP, was on brief for appellees.

Eben A. Krim, Mark W. Batten, Proskauer Rose, LLP, Sarah R. Wunsch, ACLU Foundation of Massachusetts, Kenneth Y. Choe, James D. Esseks, and ACLU Foundation on brief for American Civil Liberties Union; American Civil Liberties Union of Massachusetts; Lexington Community Action for Responsible Education and Safety; Lexington Education Association; Massachusetts Teachers Association;

[514 F.3d 90]

and Respecting Differences, amid curiae.

Harvey J. Wolkoff, Bonnie S. McGuire, Ropes & Gray LLP, Robert O. Trestan, Steven M. Freeman, Steven C. Sheinberg, Deborah Cohen, and Anti-Defamation League on brief for Anti-Defamation League, amicus curiae.

Nima R. Eshghi, Mary L. Bonauto, Gary D. Buseck, and Gay & Lesbian Advocates & Defenders on brief for Gay & Lesbian Advocates & Defenders; Gay, Lesbian & Straight Education Network; Greater Boston Parents, Families and Friends of Lesbians and Gays; Human Rights Campaign; Human Rights Campaign Foundation; and the Massachusetts Women's Bar Association, amici curiae.

Before LYNCH, Circuit Judge, STAHL, Senior Circuit Judge, and HOWARD, Circuit Judge.

LYNCH, Circuit Judge.


Two sets of parents, whose religious beliefs are offended by gay marriage and homosexuality, sued the Lexington, Massachusetts school district in which their young children are enrolled. They assert that they must be given prior notice by the school and the opportunity to exempt their young children from exposure to books they find religiously repugnant. Plaintiffs assert violations of their own and their children's rights under the Free Exercise Clause and their substantive parental and privacy due process rights under the U.S. Constitution.

The Parkers object to their child being presented in kindergarten and first grade with two books that portray diverse families, including families in which both parents are of the same gender. The Wirthlins object to a second-grade teacher's reading to their son's class a book that depicts and celebrates a gay marriage. The parents do not challenge the use of these books as part of a nondiscrimination curriculum in the public schools, but challenge the school district's refusal to provide them with prior notice and to allow for exemption from such instruction. They ask for relief until their children are in seventh grade.

Massachusetts does have a statute that requires parents be given notice and the opportunity to exempt their children from curriculum which primarily involves human sexual education or human sexuality issues. Mass. Gen. Laws ch. 71, § 32A. The school system has declined to apply this statutory exemption to these plaintiffs on the basis that the materials do not primarily involve human sexual education or human sexuality issues.

The U.S. District Court dismissed plaintiffs' complaint for failure to state a federal constitutional claim upon which relief could be granted. Fed.R.Civ.P. 12(b)(6); Parker v. Hurley, 474 F.Supp.2d 261, 263 (D.Mass.2007). Plaintiffs appeal.

I.

Because plaintiffs appeal the dismissal of their complaint under Rule 12(b)(6), we take the allegations in their complaint as true and draw all reasonable inferences in plaintiffs' favor. Otero v. Commonwealth of P.R. Indus. Comm'n, 441 F.3d 18, 20 (1st Cir.2006).

In addition to the complaint, we consider the three books plaintiffs find objectionable.1 We also take notice of the

514 F.3d 91

statewide curricular standards of the Commonwealth of Massachusetts and start with those to put this dispute in context.

A. Massachusetts Statewide Curricular Standards

The Commonwealth of Massachusetts enacted a comprehensive education reform bill in 1993, requiring the State Board of Education (SBE) to establish academic standards for core subjects. Mass. Gen. Laws ch. 69, § 1D. The statute mandates that the standards "be designed to inculcate respect for the cultural, ethnic and racial diversity of the commonwealth." Id. Further, "[a]cademic standards shall be designed to avoid perpetuating gender, cultural, ethnic or racial stereotypes." Id.; see also id. § 1E (requiring same for the establishment of curricular frameworks). The statute does not specify sexual orientation in these lists.

The SBE established such standards, including a Comprehensive Health Curriculum Framework in 1999. That Framework establishes Learning Standards, which set different measurable goals for students in pre-kindergarten through grade 5, grades 6-8, and grades 9-12. The Health Framework also specifically notes that "public schools must notify parents before implementing curriculum that involves human sexuality."

Within the Framework are Strands, and Strands have different components. Under the Social and Emotional Health Strand, there is a Family Life component, which states:

Students will gain knowledge about the significance of the family on individuals and society, and will learn skills to support the family, balance work and family life, be an effective parent, and nurture the development of children.

The Learning Standard for elementary school grades under the Family Life component states that children should be able to "[d]escribe different types of families."

In addition, the Social and Emotional Health Strand includes an Interpersonal Relationships component. That component provides:

Students will learn that relationships with others are an integral part of the human life experience and the factors that contribute to healthy interpersonal relationships, and will acquire skills to enhance and make many of these relationships more fulfilling through commitment and communication.

The associated Learning Standard for pre-kindergarten through grade 5 recommends that children be able to "[d]escribe the concepts of prejudice and discrimination."

It is not until grades 6-8 that the Learning Standards under this component address "the detrimental effect of prejudice (such as prejudice on the basis of race, gender, sexual orientation, class, or religion) on individual relationships and society as a whole."

There is also a Reproduction/Sexuality component under the Physical Health Strand. Within that component, the Learning Standards provide that by grade 5, students should be able to "[d]efine sexual orientation using the correct terminology (such as heterosexual, and gay and lesbian)."

These statewide academic standards do not purport to select particular instructional materials, but only to be a guide to assist others in that selection. Mass. Gen. Laws ch. 69, § 1E. Thus, there is no statewide

514 F.3d 92

regulation or policy providing for the use of the particular texts in dispute here.

By statute, the actual selection of books is the responsibility of a school's principal, with the approval of the superintendent of schools. Mass. Gen. Laws ch. 71, § 48. We assume these books were chosen locally subject to the terms of that statute. Plaintiffs allege in their complaint that Lexington school officials began integrating books like these into their elementary school's curriculum at the behest of gay rights advocates. Compl. ¶¶ 32-33.

In 1996, the Massachusetts legislature adopted a parental notification statute to be implemented by schools starting with the 1997-1998 school year. Mass. Gen. Laws ch. 71, § 32A. Section 32A requires school districts to provide parents with notice of and an opportunity to exempt their children from "curriculum which primarily involves human sexual education or human sexuality issues." The Commissioner of Education, in an advisory opinion guiding the implementation of the new law, noted that it was intended to apply to discrete curricular units, such as "any courses (typically, sex education or portions of a health education or science course), school assemblies or other instructional activities and programs."2 Schools must make the relevant curricular materials available for parents to review, though they do not necessarily have to allow parents to observe the classes. The statute mandates that the Department of Education promulgate regulations for resolving any disputes arising under section 32A, which the Department has done. See 603 Mass. Code Regs. 5.01 et seq. Lexington has a section 32A policy in place.

On November 18, 2003, a divided Supreme Judicial Court of Massachusetts held, in Goodridge v. Department of Public Health, 440 Mass. 309, 798 N.E.2d 941 (2003), that the state constitution mandates the recognition of same-sex marriage. A later effort to reverse this decision through the mechanism of a constitutional convention and a popular vote failed.

B. The Parkers

David and Tonia Parker's sons, Jacob and Joshua Parker, and Joseph and Robin Wirthlin's son, Joseph Robert Wirthlin, Jr., are students at Estabrook Elementary School in Lexington, Massachusetts. Both families assert that they are devout Judeo-Christians and that a core belief of their religion is that homosexual behavior and gay marriage are immoral and violate God's law.

In January 2005, when Jacob Parker ("Jacob") was in kindergarten, he brought home a "Diversity Book Bag." This included a picture book, Who's in a Family?, which depicted different families, including single-parent families, an extended family, interracial families, animal families, a family without children, and—to the...

To continue reading

Request your trial
241 practice notes
  • A.A. By v. Needville Indep. Sch. Dist., Civil Action No. H-08-2934.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • January 20, 2009
    ...with the parent's religious teachings and/or use of religious materials.” 540 F.3d at 249. In another recent decision, Parker v. Hurley, 514 F.3d 87, 105 (1st Cir.2008), the First Circuit recognized that, at the heart of a due process claim is some showing of coercion or compulsion. The pla......
  • GeorgiaCarry.org, Inc. v. Georgia, No. 11–10387.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • July 20, 2012
    ...by the court immediately preceding the introduction, turning to the merits of the First Amendment claim). 26.See Parker v. Hurley, 514 F.3d 87, 99 (1st Cir.2008) (“Even if [Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (......
  • San Gerónimo Caribe Project, Inc. v. Acevedo–Vil, No. 09–2566.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • July 24, 2012
    ...qualified immunity apply? San Geronimo Caribe Project, Inc. v. Acevedo Vila, 665 F.3d 350, 351 (1st Cir.2011). 2.See Parker v. Hurley, 514 F.3d 87, 90 n. 1 (1st Cir.2008) (allowing consideration of “documents the authenticity of which are not disputed by the parties; for official records; f......
  • Freedom from Religion Foundation v. Hanover School, Civil No. 07-cv-356-SM.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of New Hampshire
    • September 30, 2009
    ...159 L.Ed.2d 98 (2004) (citing Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213 (1940)); see also Parker v. Hurley, 514 F.3d 87, 103 (1st Cir.2008) (citation Plaintiffs are distressed, primarily, that the phrase "under God" is included in the Pledge's text. They conten......
  • Request a trial to view additional results
240 cases
  • A.A. By v. Needville Indep. Sch. Dist., Civil Action No. H-08-2934.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • January 20, 2009
    ...with the parent's religious teachings and/or use of religious materials.” 540 F.3d at 249. In another recent decision, Parker v. Hurley, 514 F.3d 87, 105 (1st Cir.2008), the First Circuit recognized that, at the heart of a due process claim is some showing of coercion or compulsion. The pla......
  • Freedom from Religion Foundation v. Hanover School, Civil No. 07-cv-356-SM.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of New Hampshire
    • September 30, 2009
    ...159 L.Ed.2d 98 (2004) (citing Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213 (1940)); see also Parker v. Hurley, 514 F.3d 87, 103 (1st Cir.2008) (citation Plaintiffs are distressed, primarily, that the phrase "under God" is included in the Pledge's text. They conten......
  • Favreau v. Liberty Mut., Inc., CIVIL ACTION NO. 19-10458-WGY
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • March 18, 2020
    ...inferences in his favor." Morales-Tañon v. Puerto Rico Elec. Power Authority, 524 F.3d 15, 17 (1st Cir. 2008) (citing Parker v. Hurley, 514 F.3d 87, 90 (1st Cir. 2008) ); see also Ocasio–Hernández v. Fortuño–Burset, 640 F.3d 1, 7 (1st Cir. 2011) ("The sole inquiry under Rule 12(b)(6) is whe......
  • McCullen v. Coakley, Civil Action No. 08-10066-JLT.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • August 22, 2008
    ...(1990), rehearing denied, 496 U.S. 913, 110 S.Ct. 2605, 110 L.Ed.2d 285 (1990) (subsequent history omitted). 264. See Parker v. Hurley, 514 F.3d 87, 98 (1st Cir.2008) (declining to "enter[ ] the fray over the meaning and application of Smith's `hybrid situations' language"). The court did, ......
  • Request a trial to view additional results
2 firm's commentaries
  • CAS Legal Mailbag – 11/3/22
    • United States
    • LexBlog United States
    • November 3, 2022
    ...of the First Circuit Court of Appeals is instructive on the issue this parent raises concerning gender and family. In Parker v. Hurley, 514 F.3d 87 (1st Cir. 2008), the court considered a claim that the Lexington (Massachusetts) Public Schools violated their rights under the First and Fourt......
  • CAS Legal Mailbag ' 11/3/22
    • United States
    • Mondaq United States
    • November 7, 2022
    ...of the First Circuit Court of Appeals is instructive on the issue this parent raises concerning gender and family. In Parker v. Hurley, 514 F.3d 87 (1st Cir. 2008), the court considered a claim that the Lexington (Massachusetts) Public Schools violated their rights under the First and Fourt......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT